2023 LLR 304
PUNJAB AND HARYANA HIGH COURT
Hon'ble Mr. G.S. Sandhawalia, J.
Hon'ble Ms. Harpreet Kaur Jeewan, J.
CM-1554-LPA-2022 in/and LPA-670-2022,
Dt/– 16-1-2023

Anil Kumar
vs.
Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon and another

A. DISMISSAL – When not illegal – Workman remained absent unauthorisedly from 17.01.2008 till 16.05.2008 – Explanation of workman was that he was facing medical problems – Workman failed to prove his medical problems – Despite being member of ESI Scheme, he never took treatment from ESI dispensary – Letters were written to workman to join duty but he did not join duty – Workman later on after about 2 years raised industrial dispute – Labour Court awarded reinstatement with 40% back wages – Management challenged award in writ petition – Writ Court allowed the writ petition and set aside the award passed by Labour Court – Management filed LPA/writ appeal against the judgment of writ court – Held, finding of Labour Court are perverse being contrary to statement of witnesses – Photocopies exhibited without any objection – Original record were produced before Labour Court – Hence, adverse inference drawn by Labour Court is not legally sustainable – Reason of his dispensation from service was his unexplained unauthorized long absenteeism – Finding of writ court is on the basis of evidence on record. Writ appeal fails. Workman is not entitled to any relief. Paras 4, 5 and 8

B. ENQUIRY – When not necessary – Reason of dispensation of workman from service was his unexplained unauthorized long absenteeism – Workman failed to prove his medical problems – Despite being member of ESI Scheme, he never took treatment from ESI dispensary – Letters were written to workman to join duty but he did not join duty – In such circumstances holding enquiry is not necessary. Para 10

C. CONTINUOUS WORKING 240 DAYS – During 12 calendar months – Effect of – Management produced original records – Workman failed to prove his continuous working of 240 days during preceding 12 calendar months – It was a pure and simple ‘master-servant relationship' between the employer and the employee, giving an absolute right of ‘hire and fire' to the employer – There was no violation of section 25F of Industrial Disputes Act, 1947 – Workman is not entitled for retrenchment compensation – Statutory protection could only be invoked on a completion of 240 days. Workman is not entitled any relief either reinstatement or back wages. Para 8 and 10

D. CONSTITUTION OF INDIA – Article 226 – Held, settled principle of law is that the writ Court should not interfere with the finding of fact if the same is on the basis on record – When the finding of the lower court are improper or perverse, writ court has jurisdiction to interfere with the award appropriately. Para 3

E. ABANDONMENT – Scope of – Workman himself admitted that he was absent from 17.01.2008 – Management advised the appellant to report for duty through various communications which were duly received by him and in reply of the same, the appellant submitted forged and fabricated medical certificate – Thus abandonment stands proved on the part of workman. Para 7

For Appellant: Mr. Vishal Yadav, Advocate.

For Respondent: None.

IMPORTANT POINTS

• Unauthorised and unexplained absenteeism for a long period justifies dispensation of services of the workman.
• Without supporting medical documents, reason of facing medical problems remains unproved and ineffective.
• Despite being member of ESI Scheme, if the workman does not take treatment either from ESI Dispensary/Hospital or from private hospital, it would be presumed that averment of the workman is fake.
• If finding of Labour Court or any judicial authority is contrary to evidence and documents on record, the same is improper and perverse and not sustainable.
• Photocopies exhibited without any objection, cannot be escaped from positive consideration.
• When the management has produced original records, drawing adverse inference against the management is not legally sustainable.
• Holding enquiry before dispensation with the services of the workman is not necessary, if misconduct of workman is his unexplained and unauthorized long absenteeism and despite letters written to him, he did not join duty.
• When the workman has not completed continuous service of 240 working days during preceding 12 calendar months, he would be having a pure and simple ‘master-servant relationship' between the employer and the employee, giving an absolute right of ‘hire and fire' to the employer.
• If the workman has not completed continuous service of 240 working days during preceding 12 calendar months, termination of his services would not be in violation of section 25F of Industrial Disputes Act, 1947.
• If the workman has not completed continuous service of 240 working days during preceding 12 calendar months, on termination of his services, he would not be entitled for any retrenchment compensation.
• Statutory protection under Industrial Disputes Act, 1947 could only be invoked by the workman on a completion of 240 working days service during preceding 12 calendar months.
• Settled principle of law is that the writ Court should not interfere with the finding of fact if the same is on the basis on record.
• When the finding of the lower court are improper and perverse, writ court has jurisdiction to interfere with the finding/award appropriately.
• If a workman does not resume duty despite letters written to him to join duty, prove that workman himself abandoned his job.

Judgment

G.S. Sandhawalia, J.– (Oral)

CM-1554-LPA-2022

1. By this application, the applicant-appellant seeks condonation of delay of 11 days in filing the appeal.

2. For the reasons mentioned in the application which is duly supported by an affidavit of the applicant-appellant, the application is allowed and the delay of 11 days in filing the appeal is hereby condoned.

LPA-670-2022

3. The consideration in the present appeal is to the order dated 20.04.2022 passed by the learned Single Judge in CWP-1388 of 2015, whereby the writ petition of the respondent No. 2/management was allowed and the Award dated 03.12.2014 (Annexure P-12), passed by the Labour Court was set aside.

4. The reasoning given by the learned Single Judge is that the workman himself remained absent from duty from 17.01.2008 till 16.05.2008 and he had never completed 240 days. The Labour Court had wrongly assumed that there was a working period of 240 days and thus, wrongly adverse inference had been drawn that the original record had not been produced which is also contrary to the statement of witnesses produced by the employer showing that the original record was duly produced before the Court. The photocopies of the same were exhibited without any objection and therefore, the adverse inference drawn by the Labour Court was held to be not legally sustainable.

5. The explanation as such was that he has not absent from duty voluntarily and was facing medical problems, was also rejected on the ground that there was nothing on record to even remotely suggest the same; except the bald statement of the appellant-workman. The statement made by the witness before the Labour Court was to the effect that he was having ESI Treatment Card but he had never taken any treatment from any recognized ESI Hospital/Dispensary. The Labour Court reasoning was that dispensation of service has been done by treating the absence to be a mis-conduct was also not approved by the learned Single Judge, on the ground that the appellant had not joined back after the said date or made any representation for the same. However, the management had asserted that this is a case of abandonment by the employee. It was noticed by the learned Single Judge that letters were written to the appellant to join the duty but he has chosen not to join duty and once he had not completed 240 days of service, there was no requirement of holding any enquiry to dispense with the service of the respondent-workman. The appellant attained the statutory status protection by the retrenchment clause, and it was a pure and simple ‘master-servant relationship' between the employer and the employee, giving an absolute right of ‘hire and fire' to the employer.

6. Learned counsel for the appellant has tried to convince us that on account of the illness as such which is in the form of mental depression as such, the employee had been absent and since the Award dated 03.12.2014 (Annexure P-12) had been passed in his favour by the Labour Court, Gurugram, to reinstate him with 40% back wages w.e.f. 02.09.2008 onwards, it should not have been interfered with, keeping in view the settled principle of law that the writ Court should not interfere with the finding of fact.

7. We have gone through the record and find out that it is a admitted case as such of the appellant-workman himself that he was absent from 17.01.2008. In the demand notice dated 21.05.2010, issued under the provisions of section 2A of the Industrial Disputes Act, 1947 (Annexure P-3) shows that he had claimed that he had been initially appointed on the post of Assistant Fitter in the month of November 2005 and worked continuously upto 16.01.2008 and thereafter, was absent and joined duty only on 01.06.2008. The defence before the Labour Court of the Management was that he had initially joined as Helper in January 2007 and has not completed 240 days. There was also denial of his poor mental health and the fact that he had joined duty on 01.06.2009. It was also pleaded that the management advised the appellant to report for duty through various communications which were duly received by him and in reply of the same, the appellant submitted forged and fabricated medical certificate. The appellant had also never approached ESI for his treatment. It was further pleaded that the appellant visited the premises of the respondent/management and also threatened that if he would not be allowed to do his duties as per his own will, then he will implicate them in a false case of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989. Apart from that, the appellant visited the respondent/management on 05.11.2008 and used unparliamentary language and threatened to get closed the respondent company by lodging the false case under the Act of 1989. The appellant also misbehaved with one Sh. Bani Ram Yadav, Manager-HR and become aggressive to beat him.

8. The case of the appellant was that he had worked till 16.01.2008 whereas the case of the Management was that he had worked till January 2007. The management had produced the attendance record (Annexure P-13) from January 2007 to October 2008 in the writ petition which would go onto show that he did not complete 240 days before he had left the service in January 2008. The learned Single Judge has referred to the statement of MW-1 Jaswant Singh to show that the original record was shown to the Court and the photocopies were exhibited on the file and thus, the factual aspect is clear that 240 days were not complete preceding, June 2008, the alleged date of termination.

9. In such circumstances, the right to seek reinstatement would only arise on the strength of having served for 240 days. In the absence of the same, the Labour Court could not have ordered reinstatement as the violation of section 25F of the Act cannot be said to be committed by the management. It is also to be noticed that the notice dated 29.04.2008 (Annexure P-9) also been appended which was also brought on record Annexure R-15 which was sent to him after he remained absent from January 2008. A perusal of the same would go onto show that he was absent from 17.01.2008 which is his own case also and therefore, he had been put to notice. Similar notice was also issued on 05.06.2008 (Annexure P-10), referring to the earlier notice dated 29.04.2008 and rejecting the medical certificates and also the fact that he had not informed the ESI Corporation. The demand notice under section 2A of the Industrial Disputes Act, 1947, was served after a period of 02 years claiming reinstatement and the dispute was then referred to the Labour Court.

10. In view of the above facts and circumstances, it would go onto show that the learned Single Judge was well justified in setting aside the Award of the Labour Court as it has suffered from the basic infirmity of law and that the statutory protection could only be invoked on a completion of 240 days. Management had brought sufficient material on record and it is the own case of the appellant as such that he remained absent from 17.01.2008. No relevant material could be brought on record by him to show that he was appointed in the month of November 2005 as alleged in the claim petition and therefore, in the absence of not having been completed 240 days, there was no requirement for holding any enquiry to dispense with his service.

In view of the above, we do not find any ground to interfere in the order of the learned Single Judge.

Accordingly, the appeal is dismissed.

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