M/S. FLOORTEX COLLECTION v. VIKRAM THAPA

1. The challenge in this writ petition is to the award dated October 15, 2012 of the Industrial Adjudicator in a petition filed by the petitioner under Section 11A of the Industrial Disputes Act, 1947. The said petition resulted in the claim of the respondent having been accepted by the Industrial Adjudicator, to the extent that the Industrial Adjudicator has granted a compensation of Rs. 1 lakh to the workman, to be paid within a period of 30 days from the date of the award, failing which, the interest at rate of 8% per annum from the date of publication of the award till 2016:DHC:5236 realization, was payable by the petitioner to the respondent.

2. It was the case of the respondent that he worked with the petitioner since 1991 as a skilled worker at the last drawn salary of Rs. 6000/- per month and was doing his work with satisfaction and had not given any chance of complaint whatsoever to the management. He has stated that he was not provided any appointment letter, attendance card, leave book, pay slip, yearly and sick leave, overtime and bonus by the respondent. He had stated that the petitioner had assured him to provide the aforesaid legal facilities but did not pay any heed and terminated his services on December 13, 2008, without paying his earned wages from October 1, 2008 to December 13, 2008, after obtaining his signatures on some blank papers. He has also stated that he regularly went to the petitionermanagement office for work but he was never permitted to enter there. He stated, again on January 17, 2009, when he reached the premises of the petitioner, he was threatened that he would be implicated in a false case. He also refers to a demand letter dated January 19, 2009 sent to the petitioner. He further alleged that he was rendered jobless by the act of the petitioner.

3. The petitioner had contested the claim of the respondent, by stating that, there is no cause of action for the respondent to file a claim petition against it.

4. Suffice to state, that the petitioner does not deny the fact that the respondent had worked with them. It was alleged by the petitioner that the respondent has rendered himself of unbecoming its employee. Apart from salary, he has taken an advance cash of Rs. 15,000/- on April 24, 2008 but did not turn up for duty. It is also stated, nothing remains due to him.

5. The following three issues were framed by the Industrial Adjudicator on September 27, 2010:

1. Whether the workman did not turn up to join his duties with the management after receiving an advance and, if so, to what effect? OPM.

2. Whether the management terminated services of workman illegally and/or unjustifiably and if so, to what effect? OPW

3. Relief.

6. On issue No. 1 and 2, the respondent has admitted that a register was maintained in the company for arrival and departure time of the employees. He denied the suggestion of Rs. 15,000/- having been taken as an advance. He denied, a criminal complaint or a FIR is pending against him in Manali, Himachal Pradesh. He also denied the allegation that he never attended to his duty after taking advance of Rs. 15,000/-. It was his case that he had worked for 240 days in a calendar year.

7. On the other hand, the witness of the petitioner had deposed that he knew the respondent since 2003. He also admitted that in April 2008, the respondent was getting salary of Rs. 6000/-. It has come on record through the said witness that the petitioner does not want to take the respondent back on duty as the workman was involved in a criminal matter pending in Kullu Court, Himachal Pradesh.

8. The Industrial Adjudicator has, on issue Nos. 1 and 2 held that the respondent has duly proved his employment with the petitioner and duly proved that his services were terminated by the petitioner illegally without following the principles of natural justice and the petitioner failed to discharge the onus of the issue No. 1. The Industrial Adjudicator has drawn a presumption that the services of the respondent were illegally terminated. It had concluded that no show cause notice or a domestic enquiry was conducted by the petitioner against the respondent. The Industrial Adjudicator has also concluded that, there is no evidence that the respondent has abandoned the services of the petitioner of his own sweet will nor any resignation letter was filed by the petitioner to prove its defence taken by it.

9. On issue No. 3, the Industrial Adjudicator, noting that the petitioner has lost faith in the respondent, granted Rs. 1 lakh as compensation.

10. Mr. M.Sufian Siddiqui, learned counsel for the petitioner would contend that even though the compensation awarded is untenable as in reply to the demand letter dated January 19, 2009, the petitioner had called upon the respondent to join his duty within 72 hours of the receipt of the reply dated January 29, 2009, regrettably, despite such an offer, the respondent had not join his duties. The Industrial Adjudicator should have rejected the claim petition. In this regard, he would drawn my attention to page 171 of the paper book, which is the claim petition filed by the respondent before the Industrial Adjudicator, wherein, according to him, the respondent has accepted that the petitioner had sent the reply to the demand letter dated January 19, 2009. According to him, the said reply is the one at page 121 and 122 of the paper book. He would also state, the respondent having accepted the receipt of the reply and the offer made by the petitioner to him to join back his duties and the respondent having not accepted the offer, could not have made a claim before the Industrial Adjudicator.

11. On a specific query by the Court, whether the reply of the petitioner at page 121 and 122 of the paper book, has been proved before the Industrial Adjudicator, the answer was in the negative. The learned counsel would submit, even though, reply was produced before the Industrial Adjudicator, but the same was not exhibited. If that be so, it is as good as, the said document has not been proved. Even otherwise, it is to be noted, no such offer was given by the petitioner during the pendency of the proceedings before the Industrial Adjudicator. Rather, the management witness has deposed that the petitioner does not want to take the respondent back on duty as the respondent was involved in criminal matter pending in Kullu Court, Himachal Pradesh. The reliance placed by the learned counsel for the petitioner on the reply dated January 29, 2009, even though not proved, would not help the case of the petitioner that the petitioner had offered the respondent to join back his duties. The factum of the respondent being in the employment of the petitioner, is not denied/disproved. It is also proved that the petitioner could not prove abandonment of duties by the respondent. The Industrial Adjudicator has rightly drawn a presumption that the services of the respondent were illegally terminated. On a finding of loss of confidence in the respondent, the Industrial Adjudicator having awarded an amount of Rs. 1 lakh to the respondent, it is not a fit case where this Court, in exercise of its power under Article 226 of the Constitution need to be interfere with the impugned Award. The writ petition is dismissed.

12. No costs. CM 10395/2013