Judgment:
R.P. Vyas, J.
1. The petitioner has filed the present writ petition under Articles 226/227 of the Constitution of India on 4.12.2001 against the respondents with a prayer that by an appropriate writ, order or direction the judgment and award dated 2.8.2001 Annex. 14 passed by the learned Judge, Labour Court, Jodhpur may kindly be quashed and set aside.
2. The learned Counsel for the respondent No. 2 has submitted an application under Section 17B of the Act of 1947 and has stated that before deciding the writ petition, application under Section 17B of the Act of 1947 should be decided first. He has relied on the decision of this Court in the case of Ram Dhan v. The Judge, Labour Court and Ors. 20032 WLC Raj. 485 : RLW 20032 Raj. 999 and Management, Hindustan Machine Tools Ltd. v. Judge, Labour Court 1990-LB2-GJX 0111-Raj.
3. The learned Counsel for the respondent No. 2 has also relied on the decision of Hon'ble Supreme Court in the case Workmen v. Hindustan Vegetables Oil Corporation Ltd. and Ors. 2001 SCC L&S; 114 wherein the Hon'ble Supreme has held that Section 17B application should be disposed of with great promptitude and before the disposal of the writ petition.
4. On the other hand, the learned Counsel for the petitioner has submitted that the petitioner was running a vegetable shop for some time after 8.8.1995 and thereafter he started running a tea stall near Railway Station. Therefore, the petitioner is not entitled to the benefit of provisions of Section 17B of the Act of 1947.
5. Before proceedings further, provisions of Section 17B of the Act of 1947 may be quoted hereunder:
'17B. Payment of full wages to workman pending proceedings in Higher Courts:
Where in any case a Labour Court, Tribunal or National Tribunal by its award directs re-Instatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period of part thereof, the Court shall order that no wages shall be payable under this section for such period of part, as the case may be.'.
It may be mentioned that Section 17B of the Act of 1947 is a beneficial piece of legislation which has been enacted for the benefit of the workman to see that they do not suffer on account of stay of award, which has been passed in his favour by the Labour Court. With a view surmount this difficulty, the provisions of Section 17B were added to the ID Act with clear intention to give relive to the workman during the pendency of litigation in the High Court/Supreme Court.
6. The Hon'ble Supreme Court in the case of Dena Bank v. Kriti Kumar : (2001)IILLJ252SC on which reliance has been placed by the learned Counsel for the petitioner has held that Section 17B of the Act, 1947, confers a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of Labour Court/Industrial Tribunal/National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of award being set aside.
7. Further, while deciding the application under Section 17B of the Act of 1947, this Court need not to go into merits of the award.
8. The Hon'ble Supreme Court in the case of Workmen v. Hindustan Vegetable Oil Corporation supra, has quashed the order passed by the High Court of Calcutta wherein the High Court directed that the writ petition filed by the petitioner therein and the application under Section 17B of the Industrial Disputes Act should be disposed of together, expeditiously. The Hon'ble Supreme Court directed the High Court to decide the application under Section 17B of the Act of 1947 with great promptitude and before the disposal of writ petition.
9. Thus, looking to the fact that Section 17B is a beneficial piece of legislation which has been enacted for the benefit of the workman as well as in view of law laid down by this Court in the case of Ram Dhan Management, Hindustan Machine Tools Ltd. supra and the law laid down by the Hon'ble Supreme Court in the case of Workmen v. Hindustan Vegetable Oils Corporation Ltd. supra, the application under Section 17B of the Act of 1947 is being decided first before disposal of the writ petition.
10. The learned Counsel for the petitioner has submitted that after 8.8.1995, the respondent No. 2 was running a vegetable shop in Pali for some time and, thereafter, he shared running a tea stall near Railway Station, Pali, therefore, the respondent No. 2 is not entitled to get benefit of provisions of Section 17B of the Act of 1947.
11. In my considered opinion, this argument carries no weight, for the purpose of Section 17B of the Act of 1947, the employment must be as an employee in an establishment and it would not cover a case where the workman carries on some private activity to make a living, because carrying on such an activity by the workman cannot be regarded as being employed in any establishment. Since, as per the case of the petitioner, the petitioner was running a vegetable shop and thereafter started running a tea stall, therefore, his employment cannot be regarded as being employed in any establishment and this argument raised by the petitioner stands rejected.
12. For the reasons mentioned in the application filed under Section 17B of he Act of 1947, for implementing the impugned award, in question, the application is allowed. The petitioner is directed to comply with the provisions of Section 17B of the Act of 1947. The petitioner is also directed to give full back wages to the workman last drawn by him from the date of award till the date of this judgment as well as yearly increments and D.A., which are admissible to them as per Rules. The Revision of wages, if any, will also be taken into consideration in accordance with the Rules.
13. Accordingly, the application under Section 17B of the Act of 1947 is allowed as indicated above.
14. Now, coming to the merits of the case, the brief facts of the case as stated by the petitioner are that the respondent No. 2 was engaged on casual basis on 8.12.1986 to discharge the duties in the canteen run by the employees of the Management of Maharaja Shree Umaid Mills Ltd. hereinafter referred to as the petitioner-Company.
15. On 27.7.1995, when the respondent No. 2 was discharging the duties in the canteen of the petitioner-Company, he was found to be involved in a case of theft of 'Namkeets' etc. in the canteen and, therefore, a charge-sheet was issued to the respondent No. 2 on 7.8.1995.
16. It is alleged in the writ petition that the charge-sheet was offered to the respondent No. 2, but he refused to take the same. Thereafter, he stopped coming on duty w.e.f. 8.8.1995 and did not turn up in the canteen for discharging the duties.
17. It has also been averred in the writ petition that instead of joining the duties, the respondent No. 2 raised an Industrial dispute before the Conciliation Officer under Section 12 of the Industrial Disputes Act, 1947 hereinafter referred to as 'the Act of 1947' on 11.10.1995.
18. The petitioner-Company submitted reply Annex.2 to the application filed by respondent No. 2 on 18.12.1995 stating, inter alia, that the services of respondent No. 2 have not been terminated by the petitioner-Company and the petitioner-Company is ready to take the respondent No. 2 on duty. Therefore, there is no question of any dispute arising with regard to the alleged termination of services. However, the respondent No. 2 did not join the duties.
19. It has also been averred by the petitioner that despite efforts made by the Management of the petitioner-Company, the respondent No. 2 did not join the duties and, therefore, the conciliation proceedings failed. The Conciliation Officer, submitted failure report on 6.7.1996.
20. Thereafter, the matter was referred by the State Government to the Labour Court, Jodhpur vide notification dtd. 24.4.1997 Annex.6.
21. A claim petition was filed by the respondent No. 2 before the Labour Court, Jodhpur on 7.7.1997, inter alia, stating that he was appointed in the canteen on 8.12.1986 and his services were terminated on 8.8.1995, without any notice and without following the mandatory provisions of Section 25F of the Act of 1947. The respondent No. 2 also alleged in the claim petition that he requested the employer to take him back on duty, but they refused to take him on duty.
22. A reply Annex.8 to the claim petition was filed by the petitioner-Company on 12.11.1997.
23. The respondent No. 2 submitted his affidavit and he was cross-examined by the petitioner-company.
24. On behalf of the petitioner-Company, affidavits of Bhanwar Lal Chaudhary and Suresh Kumar Rajpurohit were filed and they were cross-examined by the respondent No. 2.
25. After recording evidence of both the parties, the learned Labour Court, vide its judgments and award dtd. 2.8.2001 annex. 14, allowed the claim petition filed by the respondent No. 2 and directed reinstatement of respondent No. 2 with 25% back wages from the date of reference, i.e. 24.4.1997.
26. In the instant petition, the main contention of the petitioner is that the there is no violation of provisions of Section 25F of the Act of 1947 as the petitioner-Company has taken a stand right from the beginning that it had never terminated the services of the respondent No. 2. Even before the Conciliation Officer as well as before the Labour Court, it was contended by the petitioner-Company that it is ready to take the petitioner on duty, but he did not turn up to join the duties.
27. The learned Counsel for the petitioner has also submitted that in fact, the respondent No. 2 himself stopped coming on duty w.e.f. 8.8.1995 as soon as he was offered the charge-sheet on 7.8.1995 for the theft committed by him in the canteen. Thus, it is a case of abandonment of service on the part of workman himself. The petitioner-Company tried its level best to see that the respondent No. 2 comes back on duty, but the respondent No. 2 was not interested to work and never reported on duty from 8.8.1995.
28. It has also been submitted by the learned Counsel for the petitioner that there is sufficient evidence available on record that the Management of the petitioner -Company never terminated the services of the respondent No. 2, but the workman himself stopped coming on duty w.e.f. 8.8.1995. When the services of respondent No. 2 were not at all terminated, it would not amount to retrenchment and consequently provisions of Section 25F of the Act of 1947 did not apply in the present case.
29. It has also been submitted by the learned Counsel for the petitioner that after abandonment of service w.e.f. 8.8.1995, the respondent No. 2 was gainfully employed, therefore, award of back wages by the learned Labour Court is erroneous and deserves to be quashed and set aside.
30. On the other hand, the learned Counsel for the respondent No. 2 has submitted that the findings recorded by the learned Labour Court are based on correct appreciation of evidence and same do not require any interference by this Court under Article 226 of the Constitution of India. It has also been submitted by the learned Counsel for the respondent No. 2 that the respondent No. 2 went to petitioner-Company to join the duties on 8.8.1995, but he was not permitting to join the duties. Even after 8.8.1995, he went to the petitioner-Company on a number of occasion, but the gatekeeper of the petitioner-Company did not permit the petitioner to enter into the premises of the petitioner-Company. The learned Counsel for the respondent No. 2 has also submitted that after retrenchment of his services by the petitioner-Company, he was not gainfully employed. Therefore, the judgment and award passed by the Labour Court is perfectly in accordance with law and does not require any interference by this Court under its supervisory jurisdiction under Article 227 of the Constitution of India as there is no error apparent on the face of record.
31. I have heard the learned Counsel for the petitioner at length and scrutinised and scanned the material available on record.
32. In the instant case, it is admitted position that the respondent No. 2 was engaged on casual basis on 8.12.1986 to discharge the duties in the canteen run by the employees of the Management of the petitioner-Company.
33. There is also no dispute that a charge-sheet dtd. 7.8.1995 was issued to the petitioner regarding theft of 'Namkeens' etc.
34. There is also no dispute that the respondent No. 2 was not on duty w.e.f. 8.8.1959 and as per the case of the petitioner- Company, respondent No. 2 abandoned the services of petitioner- Company, whereas, as per the case of the respondent No. 2, his services were terminated by the petitioner-Company and he was not permitted to join the duties.
35. There is also no dispute that the petitioner raised industrial dispute before the Conciliation Officer regarding retrenchment of his services and the Conciliation Officer submitted his failure report.
36. There is also no dispute that the appropriate Government referred the matter to the Labour Court for adjudication vide notification dtd.24.4.1997.
37. It is also admitted position that the learned Labour court vide its judgment and award dtd. 2.8.2001 Annex. 14 allowed the claim petition filed by the respondent No. 2 and directed reinstatement of respondent No. 2 with 25% back wages.
38. The question which arises for consideration is whether, in the facts and circumstances of the case, the findings recorded by the learned Labour Court are sustainable or not?
39. Before appreciating the facts and circumstances of the present case, legal position in respect of 'abandonment of service' as well as 'Retrenchment' may be summarised.
'Abandonment of service' has not been defined in the Act of 1947. Etymologically, the word 'abandonment' has been explained to mean 'to leave completely and finally'; forsake utterly; to relinquish, to renounce, to give up all concern in something; relinquishment of an interest of claim. Abandonment when used in relation to an office means 'voluntary relinquishment.
40. In order to constitute 'abandonment', therefore, there must be total of complete giving up of duties so as to indicate an intention not to resume the same. Abandonment must be total and under the circumstances which clearly indicate an absolute relinquishment. Abandonment or relinquishment of service is always a question of intention. The intention may be inferred from the acts and conduct of the party. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case.
41. The definition of the term 'retrenchment' is very wide and it is in two parts. The first part is exhaustive which lays down that retrenchment means the termination of the service of a workman by the employer for any reason whatsoever, otherwise than a punishment inflicted by way of disciplinary action. Thus, the main part itself excludes the termination of service as a measure of punishment inflicted by way of disciplinary action from the ambit of the definition of retrenchment.
42. The second part further excludes i voluntary retirement of the workman; or ii retirement of the workman on reaching the age of superannuation; or iii termination of services of the workman as a result of non-renewal of the contract of employment or iv termination of service on the ground of continued ill health of the workman.
43. Keeping in mind the above legal position, the findings recorded by the learned Labour Court as well as facts and circumstances narrated hereinabove have to be examined from the acts and conduct of the party as well as in light of the surrounding circumstances of the instant case.
44. The learned Labour Court has arrived at the finding that even after commission of alleged theft on 27.7.1995, the petitioner-Company did not serve any charge-sheet on the petitioner for the one month and the contention of the petitioner-Company that the respondent No. 2 refused to take the charge-sheet on 7.8.1995 is not reliable.
45. The learned Labour Court has not applied its mind to the facts of the present case. Admittedly, the alleged theft was committed on 27.7.1995 and the charge-sheet was issued to the petitioner on 7.8.1995 i.e. after a period of 11 days, despite that the learned Labour Court has recorded a finding that the charge-sheet was issued by the petitioner-Company after a period of one month. This finding recorded by the learned Labour Court is contrary to record.
46. Further more, Sh. Bhanwar Lal Chaudhary, Contractor of the canteen, where the respondent No. 2 was working, has clearly stated in his affidavit that on 27.7.1995, when he came to know about the alleged theft committed by the respondent No. 2, he narrated the whole incident to the Labour Court. On 7.8.1995, Sh. Suresh Kumar Rajpurohit, Labour Officer told him to send the respondent No. 2 to the Labour Office for taking charge sheet. He also stated that at about 2.30 p.m., he told the respondent No. 2 to go to Labour Office for collecting the charge-sheet, however, he refused to go to the Labour Office and left the canteen at 3'O clock in the afternoon. Sh. Chaudhary also stated that he informed Sh. Suresh Kumar Rajpurohit at 2.45 p.m. about refusal of respondent No. 2 to take the charge-sheet.
47. Sh. Chaudhary further stated that on 8.8.1995 and after that, the respondent No. 2. did not turn up to join he duties. He has clearly stated that the services of the respondent No. 2 have not been terminated.
48. Similarly, Shri Suresh Kumar Rajpurohit, who is working as Personnel Office has stated that on receiving the information regarding theft by the respondent No. 2 he prepared a charge- sheet and called the respondent No. 2 to the Labour Office on 7.8.1995 at about 2.30 p.m. However, Bhanwar al Chaudhary informed him that the respondent No. 2 has refused to take the charge-sheet and has also refused to go to the Labour Office. Thereafter w.e.f. 8.8.1995, he did not turn up to join the duties and left the services voluntarily. After two months, he raised industrial dispute on 11.10.1995. He has also clearly stated that on the main gate of the petitioner-Company, the respondent No. 2 was never stopped to enter into the premises. Sh. Rajpurohit has also stated that even before the conciliation Officer he was asked to join the duties, despite that he did not join the duties. This conduct of the respondent No. 2 shows that he was not interest in joining the duties of the petitioner-Company.
49. In cross-examination, Sh. Rajpurohit has clearly admitted that even now, if the respondent No. 2 submits an application for permitting him to join the duties, the same can be considered.
50. The respondent No. 1 in his cross-examination has clearly admitted that after 7.8.1995, he did not join the duties. Thereafter, he added that on 8.8.1995, he was not permitted to join the duties.
51. Thus, from the statements of Sh. Bhanwar Lal Chaudhary and Sh. Suresh Kumar Rajpurohit, this fact is established that respondent No. 2 was asked to join the duties, but he did not join the duties, whereas as per the statement of respondent No. 2, he was not permitted to join the duties and he was stopped by the gate keeper at the main gate.
52. Though the burden of proof regarding voluntarily leaving the services lies on the management, but in the peculiar facts and circumstances of the present case, where the Management has clearly taken a stand that it was ready to take the respondent No. 2 on duty, but the respondent No. 2 himself did not turn up to join the duties and the case of the respondent No. 2 is that he was stopped by the gate-keeper and was not permitted to join duties, the burden was on the respondent No. 2 to prove his case by adducing the cogent evidence.
53. Therefore, it was the duty of the respondent No. 2 to prove his case by adducing cogent evidence to controvert the. stand taken by the petitioner-company, but the respondent No. 2 has failed to prove his case by adducing the cogent evidence.
54. Further more, from perusal the conciliation proceedings as well as reply to the application filed by the petitioner-Company before the Conciliation Officer, it is apparent that Management of the petitioner-Company was ready to take the respondent No. 2 on duty, but he did not join the duties. This circumstance clearly shows that in fact services of the respondent No. 2 have not been terminated, but he himself did not turn up to join the duties. In fact, it appears that when the respondent No. 2 was called on 7.8.1997 to take the charge-sheet, he refused to take same and, thereafter, did not turn up to join the duties w.e.f. 8.8.1997 under the apprehension that he will be subjected to disciplinary action on account of alleged theft committed by him.
55. The learned Labour Court has wrongly recorded the finding that from the charge-sheet as well as from the evidence available on record, it is not proved that who has filed the complaint against the respondent No. 2, whereas from the statement of Sh. Bhanwar Lal Chaudhary, it is clearly established that he made a complaint to the Labour Court about the theft. Therefore, the learned Labour Court has not properly appreciated the evidence available on record.
56. The intention of the respondent No. 2 regarding abandonment may be inferred from his conduct which is evident from the fact that despite the willingness of the petitioner-company to take the respondent No. 2 on duty, he did not join the duties and instead raised the industrial dispute before the Conciliation Officer after two months. Even before the Conciliation Officer, reply was submitted by the petitioner-Company in which it was contended by the Management that the Management of the petitioner-Company is ready to take the respondent No. 2 on duty. Even from the proceedings of the Conciliation Officer dtd. 27.2.1996, it is apparent that the Management of the Company was ready to take the respondent No. 2 on duty, but the respondent No. 2 did not join the duties and instead raised the industrial dispute. Thus, from the above circumstances, the intention of the respondent No. 2 regarding abandonment of service may be inferred and the above facts clearly establish that the respondent No. 2 was not interested in joining the duties and had abandoned the services of the petitioner.
57. The intention of the respondent No. 2 regarding abandonment of service may be inferred from his conduct that even after the award of reinstatement in his favour, for good three years, he did not file an execution petition. A person who is in need of service, will approach the employer for reinstatement on the next date of award in his favour or will file execution petition immediately after the award. In the present case, the respondent No. 2 even did not care to file execution petition. Further more, he filed the application under Section 17B of the Act of 1947 on 1.3.2005. These facts clearly shows that intention of the respondent No. 2 is to get back wages only and he is not interested in joining the duties of the petitioner-Company.
58. When present case is a clear case of abandonment of service, the question of retrenchment does not arise. As per the definition of retrenchment under Section 2oo of the Act, 1947, there has to be terminated of service on the part of the employer, but in the instant case, from the evidence on record, it is established that right from the beginning, the petitioner- Company was always ready to take the respondent-workman on duty, but the respondent-workman was not interested in joining the duties. When the services of the respondent No. 2 had not been terminated, there is no question of retrenchment of the workman and hence provisions of Section 25F of the Act of 1947 are not attracted in the instant case.
59. So far as finding recorded by the learned Labour Court that the respondent No. 2 had completed 240 days of service in 12 calendar month preceding the date of alleged termination is concerned, this finding is absolutely irrelevant when it has been held by this Court that the services of the respondent No. 2 have not been terminated, but he himself abandoned the services of the petitioner in order to avoid domestic enquiry.
60. The learned Counsel for the respondent No. 2 has also relied on the decision of the Hon'ble Supreme Court in the case of Nics India Tools v. Ram Surat and Anr. 2004 SCC L&S; 1081. This authority would not be helpful to the learned Counsel for the respondent No. 2 in as much as in the present case, it is specific case of the petitioner-Company that it was ready to take the respondent No. 2 on duty, but the respondent No. 2 himself did not join the duties. On the other hand, the stand of the respondent No. 2 is that he was stopped by the gate-keeper to enter into the factory premises of the petitioner-company. If it was so, it was the duty of the respondent No. 2 to prove his case by adducing cogent evidence.
61. The learned Counsel for the respondent No. 2 has also relied on the decisions of the Hon'ble Supreme Court in. the case of UP SRTC through its Managing Director and Anr. v. Jeewan Prasad Misra and Anr. 2003 SCC L&S; 101, D.K. Yadav v. J.M.A. Industries Ltd. 1993 SCC L&S; 723 and Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh : (1990)IILLJ70SC . The law laid down in these cases is not applicable in the instant case as in the instant case, it has been held that the services of the respondent No. 2 have not been terminated, but he himself left the services of the petitioner, therefore, provisions of Act of 1947 are not applicable in the instant case. Thus, these authorities would not be helpful to the learned Counsel for the respondent No. 2.
62. For the reasons mentioned above, the, findings of facts recorded by the learned Labour Court are not based on correct appreciation of entire material available on record and the same are erroneous, perverse, patently unreasonable and based on no material or evidence on record. There is an error apparent on the face of the record. Therefore, the findings of the learned Tribunal suffer from basic illegality of infirmity.
63. That apart under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its findings or order is clearly perverse or patently unreasonable.
64. Since as observed hereinabove, the findings recorded by the learned Labour Court suffer from an error apparent on the face on record and are perverse and patently unreasonable, therefore, the same are not sustainable.
65. For the reasons mentioned above, the instant case writ petition is allowed and the judgment and award dtd. 2.8.2001 Annex. 14 passed by the learned Labour Court, Jodhpur is quashed and set aside. However, the application under Section 17-B of the Industrial Disputes Act, 1947 stands allowed as indicated above.
66. No order as to costs.