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Judgment
Rameshwar Singh Malik, J.
Application is allowed, as prayed for.
CM stands disposed of.
1.The instant writ petition is directed against the award dated 16.7.2012 (Annexure P-5) passed by the learned Labour Court thereby deciding the reference in favour of the respondent-management and against the petitioner-workman. The brief facts of the case are that the petitioner-workman joined respondent-management on 28.11.2001 as Operator. It was further pleaded case of the petitioner-workman that he could not join the duties on 17.7.2004 due to his illness and he sent intimation to the management regarding his illness alongwith medical certificate. However, his services came to be terminated allegedly in illegal manner on 17.1.2005, as recorded by the learned Labour Court in para 1 and 2 of the impugned award. It was further alleged that respondent-management violated the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947 (''the I.D. Act'' for short) terminating the services of the petitioner workman. Industrial dispute was raised. Conciliation proceedings failed and thereafter the dispute was referred to the learned Labour Court for its adjudication.
Notice was issued to the respondent-management, who took the plea that services of respondent-workman were never terminated. He himself absented from the duty w.e.f. 12.7.2004 without any intimation. Respondent-management issued number of registered notices on 14.7.2004, 19.7.2004 and 29.7.2004 asking him to report for duty but the workman never returned for duty. Thereafter, the respondent-workman abandoned his job on his own accord.
The workman was given opportunity of personal hearing but he did not avail that also. Petitioner-workman did not file any rejoinder to the above-said pleadings of the respondent-management. Parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner-workman was not a willing worker. He absented from duty and thereafter himself left the job. The petitioner workman was not found entitled for any relief and the reference was decided against him vide impugned award dated 16.7.2012 (Annexure P-5). Hence, this writ petition.
Learned counsel for the petitioner submits that the learned Labour Court proceeded on a misconceived and illegal approach, while passing the impugned award. The present one is not a case of abandonment of job. Petitioner proceeded on leave due to illness and he sent the intimation to the management regarding his illness alongwith his medical certificate. Thereafter, the alleged absence was beyond his control. He was not granted due opportunity before terminating his services in violation of the provisions of Section 25F of the I.D. Act. He next contended that the learned Labour Court could have moulded the relief in this regard but total rejection of the claim of the petitioner was illegal on the face of it. To substantiate his arguments, learned counsel for the petitioner places reliance on the judgment of the Hon''ble Supreme Court in M/s. Scooters India Ltd. Vs. M. Mohammad Yaqub and Another, . Finally, he prays for setting aside the impugned award, by allowing the present writ petition.
Having heard the learned counsel for the petitioner at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case warranting any interference at the hands of this Court while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
The present one is a case wherein the respondent management brought on record voluminous evidence. Shri Ranjit Singh, MW-1, appeared on behalf of the respondent-management and proved the documents Ex. M-1 to Ex. M-51. Another witness namely, Shri K.M. Sharma was examined as MW-2, who tendered in evidence documents Ex. M-52 to Ex. M-56. The third witness was Vipin Kaushal, who was examined as MW-3. After careful perusal of the evidence led by both the parties, the learned Labour Court came to the judicious conclusion that the workman relied upon photocopy of the medical certificates Ex. PW-1/8 and Ex. PW-1/9 issued by a private doctor. However, even the doctor who issued these certificates was not produced by the workman for the reasons best known to him nor original medical certificates were produced.
The learned Labour Court has rightly drawn adverse inference against the petitioner in this regard, because of which the impugned award deserves to be upheld. It is pertinent to note here that the petitioner-workman appeared as PW-1. He admitted that his ESI amount used to be deducted by the management. He did not make any complaint regarding non-issuing of ESI Card. There was a dispensary in the premises of the respondent-management, which was being looked after by a qualified medical officer. He further admitted that he was instructed by the management to appear before the CMO for his medical check up and to get fitness certificate but he never appeared before the CMO for his medical examination.
Petitioner also admitted that he never visited dispensary, which was being run by the management nor he visited ESI hospital for his treatment despite being so directed by the respondent-management. This unreasonable attitude of the petitioner makes it clear that neither he was a willing worker nor he could explain the reasons for his absence. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law, while passing the impugned award, which deserves to be upheld.
The learned Labour Court also correctly relied upon Ex. M-51, which was a copy of certified standing orders. Clause 18 of the standing orders provides for leave. As per the provisions of clause 18 of the standing orders, if a workman remained absent continuously for more than 10 working days consecutively without sanctioned leave or beyond the period of leave originally sanctioned or specifically extended, he shall loose his lien on his appointment automatically. In case of non-response, it will be deemed that the services of the workman has come to an end by his own conduct. In such event, the workman shall not be entitled for an notice or compensation. Once the petitioner was covered under clause 18 of the above-said certified standing orders, his services would be deemed to have come to an end because of which his own conduct for remaining absent for more than 10 days.
In the present case, the petitioner-workman remained absent for about six months without there being any explanation, whatsoever, in this regard. Further, the availability of the above-said certified standing orders will also absolve the respondent-management from the responsibility of holding domestic enquiry on the issue of absence from the petitioner. In this view of the matter, it is unhesitatingly held that the petitioner was responsible for his own conduct while not reporting for duty and the learned Labour Court has come to the just conclusion while passing the impugned award, which deserves to be upheld.
In the given fact situation of the present case, it is clear that the respondent-management did its level best. Whatsoever, it could have done on its part, was done by the management. Repeated registered notices were issued to the petitioner but he did not respond. Neither he reported for duty nor he appeared before the medical officer of the dispensary run by the respondent-management despite repeated directions having been issued to him.
It seems that the petitioner was neither needy nor a willing worker. However, he tried to put an excuse to justify his absence, which was nothing but an after thought and rightly did not find favour with the learned Labour Court. Thus, the petitioner cannot blame anybody except himself. Further, during the course of arguments, learned counsel for the petitioner could not press into service any substantive argument so as to persuade this Court to take a different view than the one taken by the learned Labour Court. No jurisdictional error or patent illegality apparent on the record has been pointed out in the impugned award passed by the learned Labour Court and the same deserves to be upheld for this reason as sell.
So far as the judgment relied upon by the learned counsel for the petitioner in M. Mohammad Yaqub''s case (supra) is concerned, the same has not been found to be applicable to the present case, being clearly distinguishable on facts. As noticed herein-above, repeated registered letters were issued to the petitioner. He did not respond. Neither he appeared before the CMO for his medical check up despite repeated instructions issued by the respondent-management nor he could furnish any reason in this regard.
Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge-made law thereto. Sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, .
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the instant writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out. Resultantly, the instant writ petition stands dismissed, however, with no order as to costs.