Factory Manager M/S Excel Security Vs. Krishan Kumar and Another - Court Judgment

CWP No.4440 of 2013 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.4440 of 2013 Date of decision:19.02.2014 Factory Manager M/s Excel Security ....Petitioner Versus Krishan Kumar & another ......Respondents CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr.Neeraj Kumar, Advocate, for the petitioner. **** G.S.Sandhawalia J.(ORAL) 1. The present writ petition has been filed by the Management, challenging award dated 27.07.2012, passed by the Labour Court, Gurgaon, vide which, the reference was decided in favour of the workman and in view of the fact that the Management had initially put in appearance but later on, it was proceeded ex parte on 01.08.2012. From the deposition of the workman, it was held that his services were illegally terminated and he was entitled to reinstatement along with 40% back wages, on the basis of the last drawn salary.

2. Counsel for the petitioner has placed on record certified copy of the award dated 27.07.2012, since operative part of the typed copy of the said award (Annexure P6), is not correct.

3. A perusal of the paperbook would go on to show that the workman was employed with the petitioner-Management on 21.05.2007 and remained till 04.05.2010, as a Security Guard and his services were terminated on 05.05.2010. It is pleaded by the workman that the said termination was illegal as no domestic enquiry was conducted against him, no retrenchment compensation was given to him and the mandatory provisions of Section 25-F of the Act have, thus, been Sailesh ranjan violated. 2014.03.05 10:44 I attest to the accuracy and integrity of this document CWP No.4440 of 2013 -2- 4. The Management had authorised Shri Arvind Chaudhary, Advocate. On 07.03.2011, authority letter was filed on behalf of the Management and Shri Rajesh Grover had put in appearance who also appeared on 18.04.2011 and on 31.05.2011, when the claim statement was filed and the case was adjourned to 01.08.2011. On the said date, none appeared on behalf of the Management. The case was adjourned to 21.09.2011 for ex parte evidence as the Management was proceeded against ex parte. Thereafter, the case was adjourned from 21.09.2011 to 23.11.2011 and then, to 24.01.2012, 28.03.2012, 02.05.2012 and eventually, to 01.06.2012. The workman examined himself on the said date and closed his ex parte evidence. Thereafter, the case was adjourned to 27.07.2012, when the impugned award was passed. Resultantly, the present writ petition has been filed.

5. The justification given in the present writ petition is that Rajesh Grover was authorized by the petitioner-Company, who appeared and his memo of appearance was filed but no message was conveyed to the petitioner-Company, by the counsel and the award was passed. It has also been averred in para No.6 of the writ petition that one Shri Arvind Chaudhary, Advocate, Gurgaon, had been engaged on behalf of the Company and a copy of the authorisation has been appended as Annexure P4. However, the presence of Shri Chaudhary does not find mention and Rajesh Grover was thereafter appearing as the authorised representative of the Management and thereafter also, he failed to represent the Company, for the reasons best known to him.

6. Counsel for the petitioner has vehemently submitted that the worker has been taken back into service but the petitioner-Company is aggrieved against the grant of back wages to the tune of 40% and has placed reliance upon the judgment of this Court in Sukhdev Raj Vs. Labour Court through its Presiding Officer, Faridabad & another 2009 (4) RSJ455 It is submitted that vide Sailesh ranjan Annexure P1, the workman had admitted that he had drunk alcohol during the 2014.03.05 10:44 I attest to the accuracy and integrity of this document CWP No.4440 of 2013 -3- course of his employment and some theft had taken place, leading to loss to the Management.

7. After hearing counsel for the petitioner, this Court is of the opinion that the said submission cannot be accepted. The negligence on the part of the Management is apparent on the face of the record. There is no denying the fact that from 01.08.2011, none had put in appearance on behalf of the Management. The award was also passed almost a year later, i.e., on 27.07.2012. The case was adjourned to several dates, but nobody put in appearance on behalf of the petitioner-Management. The sufficient cause, which is now sought to be given in the writ petition can hardly be held sufficient, in any manner, for setting aside the ex parte proceedings. The petitioner-Management had to satisfy this Court that there was some sufficient cause by which the authorised representative could not put in appearance. In the present case, no such reason has been given. Submission made that the counsel engaged did not inform the Management, is without any basis. It was also the duty of the Management to get information from their counsel as to what was the latest position of its case, which was not done. It is, thus, apparent that the petitioner-Management failed to act diligently and now, wants to deny the workman his legitimate rights.

8. The Apex Court in Parimal Vs. Veena @ Bharti, 2011 (3) SCC545 while discussing the scope of Order 9 Rule 13 CPC, held that the party has to satisfy the Court that it was prevented from sufficient cause from appearing when the suit was called for hearing and the Court shall not set aside the ex parte proceedings solely on an application filed in which there was no sufficient cause shown. The relevant paras read thus:-

“8. It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by Sailesh ranjan 2014.03.05 10:44 sufficient cause from appearing when the suit was called on for I attest to the accuracy and integrity of this document CWP No.4440 of 2013 -4- hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. “Sufficient Cause”. is an expression which has been used in large number of Statutes. The meaning of the word “sufficient”. is “adequate”. or “enough”., in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient”. embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause”. means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently”. or “remaining inactive”.. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR1962SC361 Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR1968SC222 Surinder Singh Sibia v. Vijay Kumar Sood, AIR1992SC1540 and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC459 10. In Arjun Singh v. Mohindra Kumar & Ors., AIR1964SC993 this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause”. and “sufficient cause”. is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”.. (See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR1917P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR1964SC1336 and Mata Din v. A. Narayanan, AIR1970SC1953 Sailesh ranjan 2014.03.05 10:44 I attest to the accuracy and 11. While deciding whether there is a sufficient cause or not, the integrity of this document CWP No.4440 of 2013 -5- court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR2000SC2306 Madanlal v. Shyamlal, AIR2002SC100 Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR2002SC451 Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR2002SC1201 Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC127 Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC95 and Reena Sadh v. Anjana Enterprises, AIR2008SC2054 12. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.”

. In the present case, as discussed above, the management has failed to show any sufficient cause for setting aside the ex parte award.

9. The submission of the counsel for the petitioner that the workman has admitted his guilt, is without any basis. Admittedly, it is not the case of the petitioner-Management that the enquiry was conducted, when his services were terminated and therefore, his admission, without any enquiry officer being appointed, is without any basis. The last submission made is that grant of back wages is not automatic as held in Sukhdev Raj (supra). In the said case, the challenge was to the reference answered in favour of the workman who was entitled to reinstatement with continuity of service and full back wages w.e.f. particular date. It was held that the conduct of the workman was important as he Sailesh ranjan 2014.03.05 10:44 I attest to the accuracy and integrity of this document CWP No.4440 of 2013 -6- was found guilty of serious misconduct of using unparliamentary language against his superiors or co-workers and therefore, was not entitled for back wages, even if his termination was found illegal. The writ petitions, filed, both by the workman and the Management, were dismissed. In the present case, the Labour Court has, by virtue of the award, restricted the back wages to the extent of 40% only. The period between the date of termination, which is 05.05.2010 and the award which was passed on 27.07.2012, is not very long and the amount of 40% back wages is negligible. The Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & others 2013 (10) SCC324has specifically held that the back wages is a necessary outcome of the reinstatement as the labour cannot be put to fault because of the negligence and the fault of the Management. After discussing plethora of case law, the following principles were laid down:

“33. The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of Sailesh ranjan 2014.03.05 10:44 a particular fact lies on the person who makes a positive averments I attest to the accuracy and integrity of this document CWP No.4440 of 2013 -7- about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long Sailesh ranjan 2014.03.05 10:44 lapse of time between the termination of his service and finality I attest to the accuracy and integrity of this document CWP No.4440 of 2013 -8- given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.”. 10. It has been time and again held that this Court, in exercise of its writ jurisdiction, shall not disturb the discretionary relief of back wages and this Court is not to sit as a Court of appeal. No case is made out to interfere in the well reasoned order of the Labour Court. Writ petition stands dismissed, accordingly.

11. Since the sum of `15000/- was deposited as litigation expenses but the workman has not come forward to defend his case, it is directed that the said sum be refunded to the petitioner-Management. 19.02.2014 (G.S.SANDHAWALIA) sailesh JUDGE Sailesh ranjan 2014.03.05 10:44 I attest to the accuracy and integrity of this document