Skand Pvt. Ltd. vs M. Masthan

B.S. Patil, J.—This writ petition is filed challenging the award dated 16.05.2006 passed by the Labour Court, directing reinstatement of the respondent-workman with 70% back wages from the date of termination till the date of reinstatement with continuity of service and all other consequential benefits.

Facts as emerge from the pleadings and the impugned award disclose that respondent-workman joined the services of the petitioner-management during 1996 as Excavator Operator. According to him, he had proceeded on leave with effect from 29.12.2000 for Ramzan festival; as he fell ill, he sought extension of his leave upto 03.01.2001. Having availed the leave, he came to report for duty on 04.01.2001. But the management did not allow him to resume duties and thus refused employment to him; although he made several attempts to report for duty, he was not permitted, therefore, he approached the Conciliation Officer, Ballari, where the management contended that the workman had been transferred to Kakoda Industrial Estate, Goa, with effect from 27.12.2000, but had failed to report for duty. According to the workman, there was refusal of work by the management with effect from 04.01.2001 which was illegal, unjust and arbitrary and tantamounted to retrenchment. He also contended that no such order of transfer was served on him and he did not receive any notice or memo.

Management resisted the claim contending inter alia that the workman was transferred to Kakoda Industrial Estate, Goa, with effect from 01.01.2001 and was relieved of his duties on 27.12.2000 permitting joining time till 31.12.2000. It was urged by the management that the workman refused to accept transfer order and hence it was sent by way of post on 29.12.2000 under certificate of posting. The theory of refusal of employment put forward by the workman was denied. They urged that there was no refusal of employment and the workman himself remained absent from duty without complying with the transfer order and that it was a case of abandonment of service on the part of the workman.

Both parties let in evidence. The management examined Assistant General Manager (Accounts) as MW-1. Exs. M-1 to M-8 were produced and marked, which are copies of transfer order, notices issued and also postal receipts evidencing dispatch of certain letters under certificate of posting to the address of the workman. The workman examined himself as WW-1.

On consideration of the evidence on record, the Labour Court has come to the conclusion that there was no material to show that transfer order was served on the workman, even though admittedly he had visited the management on 04.01.2001. It has also found that the management did not choose to send the show cause notices by registered post and it was not established that the transfer order and the show cause notice had been indeed served on the workman so as to come to the conclusion that it was a case of abandonment of service on the part of the workman. The Labour Court has also come to the conclusion that it was hard to believe that show cause notices were repeatedly sent almost on six occasions only by way of certificate of posting without taking recourse to issuing notice by way of registered post atleast once. The Labour Court has found exception to the conduct of the management in not conducting any enquiry against the workman for his alleged misconduct of unauthorizedly abstaining from work and disobeying the order of transfer. Therefore, it has found that it was a case of refusal of work by the management/termination of service tantamounting to retrenchment and as the same was not preceded by enquiry, the action was illegal and hence, the workman was entitled for reinstatement along with 70% back wages.

I have heard the learned Counsel for the petitioner. Counsel appearing for the respondent is not present.

This matter is of the year 2006. The workman has been receiving full wages under Section 17-B of the Industrial Disputes Act, 1947 by virtue of the interim order passed on 24.08.2006. As I do not find any justification to adjourn the hearing of this case, I have heard the learned Counsel for the petitioner and perused the entire records including the original records which is secured before the Court.

Learned Counsel for the petitioner places reliance on the judgment of the Apex Court in the case of U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , to contend that the court is conferred with power to mould the relief under the given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under Industrial Disputes Act. Order VII Rule 7 CPC confers power on the court to mould the relief. Section 11-A of the Industrial Disputes Act empowers the Labour Court to give appropriate relief in case of discharge or dismissal of workman and that payment of back wages cannot be automatically granted. It depends on facts and circumstances of each case. He submits that in the instant case, the workman has not approached the management and only in order to avoid taking up his responsibility at Goa at the transferred post, he has abstained from duties, and therefore, he is not entitled for any back wages. He has supported the action of the management.

On careful perusal of the impugned award, I find that the Labour Court has appreciated the evidence on record to come to the conclusion that if at all the workman had refused to abide by the order of transfer by reporting to the transferred post and had abstained from duties unauthorizedly, management ought to have held an enquiry and imposed appropriate punishment and that here was no justification for the employer to keep quiet by treating the conduct of the workman as abandonment of work. This approach of the Labour Court, in my view, is right and justified.

Even if the order of transfer had been served on the workman and even if he had not responded to the notices issued, the appropriate course for the employer was to hold an enquiry, impose appropriate punishment and not to keep quiet by unilaterally treating it as a case of abandonment. Indeed, in the month of August 2001, the workman has approached the Conciliation Officer and had contended before him that there was denial of work by the management. Even then the management does not take any action. It continues to treat him as a person who has abandoned his duties. This is not permissible in law.

Admittedly, the workman had served with effect from 1996. Therefore, regular employee of the petitioner-management could not be shut off from duties by taking up a plea that employee himself did not turn up and abandoned the service. Hence, the award passed by the Labour Court in directing reinstatement of the employee is unexceptional.

However, the conduct of the workman also requires to be looked into while granting back wages. The Labour Court has simply proceeded to award 70% back wages for the period from January 2001 to 16.05.2006. The management has produced copies of show cause notices and the postal receipts for having sent notices under certificate of posting. No explanation is offered by the workman to the postal receipts evidencing sending postal covers under certificate of posting, whereas the management witness has contended that show cause notices were served to the address of the respondent-management. As rightly submitted by the Counsel for the petitioner placing reliance on the judgment U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , payment of back wages cannot be automatic. It depends on facts and circumstances of each case. It is also contended by the management in the writ petition that petitioner-management has become a sick unit and the same has also come in the evidence of the management. The evidence of the management witness discloses that petitioner-company did not continue to engage itself in the mining operations and it became a sick unit. Keeping in mind all these relevant factors. I am of the considered view that if 40% back wages is awarded, it will meet the ends of justice.

Hence, this writ petition is allowed in part. The award passed by the Labour Court directing reinstatement is confirmed. Back wages are reduced and fixed at 40%.