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2022 DIGILAW 949 (ALL)

Gopal Soap Industries v. State of U. P.

2022-06-10

AJAY BHANOT

body2022
JUDGMENT : 1. The petitioner-employer has assailed the award dated 12.10.2020, rendered by the labour court in Adjudication Case No.71 of 2002, Mauhar Singh Vs. M/s Gopal Soap Industries. In the impugned award, the labour court found that the termination of the respondent workman was illegal and held that the respondent workman was entitled to full backwages w.e.f. 12.07.2000 to July 2013. The relief of reinstatement was not been granted. 2. The respondent-workman has not filed a counter affidavit despite being granted time. Undisputed facts which are relevant for a just adjudication of the controversy can be prised out from the impugned award and admitted documents before this Court. Hence no useful purpose would be served by exchanging the pleadings and keeping this petition pending.The controversy relates to the year 2000. Matter has been pending since the year 2002 before the labour court. Interests of justice require that the controversy be settled without further delay. 3. Shri Chandra Bhan Gupta, learned counsel for the petitioner-employer contends that the workman had abandoned his duties. Despite intimations asking him to rejoin duties, he failed to do so. It is admitted that workman was gainfully employed after he severed his employment with the petitioner. Industrial establishment is lying closed since 2013. 4. Shri Akshat Sinha, learned counsel for the respondent-workman contends that the respondent-workman had not abandoned his duties. He was always willing to join his duties but he was prevented to do so by the management. No domestic enquiry was conducted in the matter. The closure of the establishment from 2013 is undisputed. Further the fact of gainful employment of the workman during the period of termination could not be disputed. 5. Heard learned counsel for the parties. 6. It is established from the records that the industrial establishment had closed down in the year 2013. The labour court has declined to grant relief of reinstatement to the workman. The denial of reinstatement has not been challenged. The question which arises for consideration is whether the respondent-workman had abandoned his duties and the nature of relief to which he is entitled. 7. Abandonment of service in industrial jurisprudence happens when an employee remains unauthorizedly absent from duty and fails to turn up for duty despite intimations from the employer. Employer can then strike him off the roles of the establishment and end the employer employee relationship. 7. Abandonment of service in industrial jurisprudence happens when an employee remains unauthorizedly absent from duty and fails to turn up for duty despite intimations from the employer. Employer can then strike him off the roles of the establishment and end the employer employee relationship. Unauthorized absence from duty leads to decline in productivity, does not contribute to industrial peace and can legitimately even spark industrial unrest. The employer in such facts can infer that the employee has voluntarily severed the employer employee relationship by abandoning his duties. 8. A domestic enquiry in such cases is not required. The conditions precedent for inferring abandonment of service have to be satisfied and supported by reliable materials in the record. 9. Unauthorized absence from duty may be a misconduct warranting a domestic enquiry. If the employee rejoins duties after such absence, the employer can charge with the misconduct. The workman would then face domestic enquiry into the charge. 10. The specific case of the petitioner-employer before the labour court was that the respondent workman ceased to report for duty w.e.f. 12.07.2000. Despite repeated intimations requiring him to rejoin his duties, he failed to do so. The facts were pleaded in the written statement and also testified in the evidence tendered on behalf of the petitioner-employer. 11. The respondent-workman in his pleadings as well as in his deposition before the labour court states that the petitioner-employer did not permit him to join duties w.e.f 12.07.2000. 12. The categorical stand pleaded supported by credible evidence of the employer before the labour court was that the respondent-workman had remained unauthorizedly absence from duty. Despite repeated intimations recalling him to duty, he failed to rejoin his duties. He had abandoned his duties. The labour court neglected to return any finding on this issue. 13. The labour court in the impugned award has pivoted the award only on the fact that no domestic enquiry was conducted. Prolonged absence of workman from duty is established from the record. There is no evidence of sanction of leave or the employer authorizing such absence. The employer in his pleadings before the court below also asserted that in the period of unauthorized, repeated intimations were sent to the workman recalling him and requiring him to rejoin duties. Evidence of the petitioner to this effect was also tendered (by affidavit). There is no evidence of sanction of leave or the employer authorizing such absence. The employer in his pleadings before the court below also asserted that in the period of unauthorized, repeated intimations were sent to the workman recalling him and requiring him to rejoin duties. Evidence of the petitioner to this effect was also tendered (by affidavit). The respondent workman did not dispute the said pleadings nor could he discredit the said evidence. 14. The conditions prerequisite for employer to infer abandonment of service by the workman were satisfied by credible evidences in the record. The conclusions of employer are reasonable, and its action is lawful and valid. The labour court has failed to advert to this is sue and neglected to consider the pleadings and evidences in the record. The labour court has returned perverse findings which vitiate the impugned award. 15. The employer employee relationship was lawfully severed due to abandonment of service by the workman. In this wake the question of holding a domestic enquiry into the charge of unauthorized absence from duty does not arise. 16. The labour court misdirected itself in law by failing to observe the distinction between abandonment of service and the misconduct of unauthorized absence from duty which warrants a domestic enquiry. 17. This sets the stage for consideration of the issue of grant of backwages. The petitioner employer had specifically averred in the pleadings and categorically testified on oath that the respondent workman was running a grocery/Kirana shop right opposite the factory premises at all relevant times. These facts were also not disputed by the respondent workman. 18. Statement of the employer witnesses before the labour court to this effect was not challenged by the workman. The credibility of such witnesses could not be impeached even after the cross examination by the workman. Most importantly, the respondent workman has admitted in his testimony before the labour court that he was running a grocery/Kirana shop during the relevant period. 19. The material in the record unequivocally establishes the fact that the stand of the employer that the workman was gainfully employed after severance of the employer employee relationship. 20. The claim of backwages made by the workman has to be seen in light of the law in respect of reinstatement in service and grant of the relief of backwages. This narrative shall profit from the authorities in point. 21. 20. The claim of backwages made by the workman has to be seen in light of the law in respect of reinstatement in service and grant of the relief of backwages. This narrative shall profit from the authorities in point. 21. While noticing the change in the award of backwages, the Supreme Court in P. Karupaiah (D) Through Lrs Vs. General Manager Thruuvalluvar Transport Corporation Ltd. reported at 2018 (12) SCC 663, held that for grant of backwages, an enquiry into gainful employment of the workman during the period has to be made by holding thus : “11. Indeed, the employee in order to claim the relief of back wages along with the relief of reinstatement is required to prove with the aid of evidence that from the date of his dismissal order till the date of his rejoining, he was not gainfully employed anywhere. The employer too has a right to adduce evidence to show otherwise that an employee concerned was gainfully employed during the relevant period and hence not entitled to claim any relief of back wages. 12. On proving such facts to the satisfaction of the Court, the back wages are accordingly awarded either in full or part or may even be declined as the case may be while passing the order of reinstatement. The courts have also applied in appropriate cases the principle of “no work no pay” while declining to award back wages and confining the relief only to the extent of grant of reinstatement along with grant of some consequential reliefs by awarding some benefits notionally, if any, in exercise of discretionary powers depending upon the facts of each case. 13. Having seen the record of the case, we are satisfied that there was no evidence brought on record by the appellant (employee) in his writ petition to claim the back wages for the period in question either in full or part. Moreover, we find that the issue in question was raised in the writ petition and not before the Industrial or Labour Tribunal where the parties could adduce evidence on such question. (See the proviso to Section 17-B of the Industrial Disputes Act, 1947.) 14. Be that as it may, the writ court and the appellate court yet examined the question in its writ jurisdiction and finding no merit therein declined to award any back wages. (See the proviso to Section 17-B of the Industrial Disputes Act, 1947.) 14. Be that as it may, the writ court and the appellate court yet examined the question in its writ jurisdiction and finding no merit therein declined to award any back wages. This Court does not find any good ground to interfere in the discretion exercised by the two courts below and accordingly uphold the orders impugned herein calling no interference.” 22. A similar holding was given in M/s Reetu Marbles Vs. Prabhakant Shukla, reported at 2010 (2) SCC 70 on the foot of authorities in point by stating : “15. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry.” 23. The Supreme Court in U.P. Brassware Corporation Ltd. Vs. Uday Narain Pandey, reported at 2006 (1) SCC 479 , set its face against mechanically granting backwages by observing as under : “17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. 22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. 43. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. 43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.” 24. A similar view was taken in P. V. K. Distillery Ltd. Vs. Mahendra Ram, reported at 2009 (5) SCC 705 , wherein the position of law was reiterated as under : “18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.” 25. The labour court in the impugned award mechanically granted full backwages to the workman from 12.07.2000 to July 2013 in a cryptic fashion. Backwages cannot be granted in a mechanical manner as a rule of thumb. Grant of relief of full backwages varies from facts of the each case. Grant of such relief will require a reasonable consideration by the labour court of all relevant factors including the fact of gainful employment. 26. Gainful employment of the workman during the relevant period having been established, there is no good lawful basis for grant of backwages. 27. In the ordinary course, the matter could have been remitted to the labour court on decisive issues which were neglected for fresh consideration. The matter has been pending for almost two decades. The establishment was shut down in 2013 and is lying closed even since. No useful purpose will be served by sending the parties into another orbit of endless litigation since relevant facts for denial of backwages are established. The matter has been pending for almost two decades. The establishment was shut down in 2013 and is lying closed even since. No useful purpose will be served by sending the parties into another orbit of endless litigation since relevant facts for denial of backwages are established. 28. Before parting another aspect would merit mention. The respondent workman had presented himself before the employer in July 2013 for rejoining his duties along with the commission sent by the court. There is no report of the commission in the record. Moreover, in view of the preceding discussion nothing turns on this fact. 29. In this wake, the award dated 12.10.2020 passed by the labour court published on 19.11.2020 is vitiated. The award dated 12.10.2020 published on 19.11.2020 passed by the labour court is liable to be set aside and is set aside. 30. The writ petition is allowed.