Trina Engineering Company (P) Ltd. Vs. the Secretary (Labour) and ors. - Court Judgment

Excerpt:
- - as the conciliation proceedings ended in failure, following reference was made by the secretary (labour), delhi administration to the labour court no. ' 2. after adjudicating the dispute, the learned labour court vide its award dated 17th february, 1990 held that termination of the workman's services was bad in law. 4. the case set up by the workman in the statement of claim filed by him was that he was refused duty and on his complaint made to the labour inspector, the labour inspector tried his level best on 12th april, 1983 and on 19th april, 1983 'to reinstate the workman on duty but the management refused duty'.the defense of the management in the reply filed to the statement of claim was that the management never refused duty to the workman. 9. apart from the above contradictions and salient aspects, the approach the learned labour court dealing with the service of letters sent by the management to the workman, is clearly erroneous. 10. however, the labour court was not satisfied that service of these letters had been proved by observing: if the letters were dispatched at the last known address of the workman which the workman accepts as correct, the labour court could not have observed that the management has failed to show that the letters were addressed at the correct address.a.k. sikri, j.1. the respondent no. 3/mr.ramaji (hereinafter referred to as `the workman') was working with the petitioner (hereinafter called as `the management') as turner. according to him, he was employed on 2nd november, 1978. he approached the conciliation officer alleging that he was refused duty by the management which tantamounted to termination of his services. as the conciliation proceedings ended in failure, following reference was made by the secretary (labour), delhi administration to the labour court no. vii for adjudication:'whether the management refused duty to the workman and whether this tantamounts to termination of service. if so whether the termination is illegal and unjustified what directions are necessary in this respect?'2. after adjudicating the dispute, the learned labour court vide its award dated 17th february, 1990 held that termination of the workman's services was bad in law. however, for reasons stated in the award, the labour court declined to grant back-wages and thus held that the workman was entitled to be reinstated with continuity of service but without any wages.3. this writ petition has been filed by the management challenging the said award in so far as it relates to relief of reinstatement having been given to the workman. it may be noted that the workman had also filed cwp no. 1836/1990 against that part of the award whereby he was denied the back-wages. rule was issued in both the petitions on 24th april, 1991. however, the petition filed by the workman was ultimately dismissed in default/for non-prosecution. in this petition also the workman has not appeared at the time arguments and, thereforee, i have heard mr. vinay sabharwal, learned counsel for the management.4. the case set up by the workman in the statement of claim filed by him was that he was refused duty and on his complaint made to the labour inspector, the labour inspector tried his level best on 12th april, 1983 and on 19th april, 1983 'to reinstate the workman on duty but the management refused duty'. the defense of the management in the reply filed to the statement of claim was that the management never refused duty to the workman. on the contrary, the workman started absenting himself with effect from 1st april, 1983. various letters were sent to the workman to report for duty. letters were even sent to the conciliation officer for this purpose but the workman did not report for duty. it is, thereforee, the workman who abandoned the service and his services were not terminated by the management. a preliminary objection was also taken to the effect that there was no valid demand made by the workman on the management before raising the dispute and, thereforee, it was not an industrial dispute within the meaning of section 2(k) of the industrial disputes act, 1947 (for short 'the act') and the reference was also incompetent. following issues were framed by the labour court:1. whether there was valid demand made on the management before raising the dispute?2. as in terms of reference.5. first issue has been answered against the management holding that no formal demand notice is required to be served upon the management before raising the dispute as there is no specific mode of raising demand which is stipulated in the act. the workman had approached the labour inspector and then the conciliation officer seeking a direction that he be allowed to join the duties and it would amount to raising demand for reinstatement.6. in so far as the issue no. 2 is concerned, the labour court has held that the management could not prove service of demand letters sent to the workman or the conciliation officer. although observations are made that if all these letters are taken together, prima facie, it would make the court believe that the management was interested in providing duty to the workman but the workman was not interested. however, only on the ground that services of these letters were not proved, no reliance was placed of these letters.7. normally findings are of facts are not to be interfered with in writ proceedings under article 226 of the constitution of india when such an award is challenged. however, learned counsel for the petitioner has shown various contradictions in the case set up by the workman and on that basis it is argued that the findings rendered are perverse. it is, inter alia, pointed out that :(a) first of all, there is no allegation of terminating the services of the workman, made in the statement of claim. although it is stated that the management had regular practice of refusing duty to the workmen, there is no specific allegation that even the workman in question was refused duty. it is also not stated as to on which date the management had refused him the duty.(b) in the examination-in-chief, the workman stated that he was refused duty by the management with effect from 1st april, 1983 whereas in the cross examination he mentioned that the management refused to give work on 12th april, 1983 for the first time.thus there were clear contradictions by the workman on this aspect of alleged refusal of duty to him.(c) in his statement, the workman has made out a case of alleged refusal of duty whereas in cross-examination of the management's witnesses, suggestions are given that the workman was dismissed from service which goes contrary to the case put up by the workman earlier.(d) when a specific question was put to him as to who had refused him the duty, the workman had given the name of one mr. satyendra who refused to give him the work. it is also stated in the statement in cross-examination by the workman that mr. satyendra is the manager. a specific question was put up in the cross-examination that mr. satyendra had nothing to do with the management and suggestion was also given that mr. satyendra did not refuse to give him work. on the other hand, both the management's witnesses stated that mr. satyendra was not employed as manager with the management firm and the attendance register was also brought. there is no cross-examination by the workman on this aspect and not even a suggestion is put to both the witnesses.9. apart from the above contradictions and salient aspects, the approach the learned labour court dealing with the service of letters sent by the management to the workman, is clearly erroneous. witness of the management had proved these letters as exs.2/3 to 2/5. the labour court accepted that contents of these letters would show that the management was interested in providing duty to the workman.10. however, the labour court was not satisfied that service of these letters had been proved by observing:'but the service of none of these letters has been proved either on the workman or on the conciliation officer. the 4 letters which are alleged to have been written by the management to the workman have been returned back with the report that the addressee is not available at the given address. it has not been proved by the management that these letters were correctly addressed and have in fact been tendered to the workman by the postman. in fact, the postman has not at all been produced by the management.'11. it may be noted that while recording that the management has not been able to show that the letters were correctly addressed, the labour court has ignored the cross examination of the workman wherein he was confronted with the address mentioned on these letters and he accepted the address to be correct. if the letters were dispatched at the last known address of the workman which the workman accepts as correct, the labour court could not have observed that the management has failed to show that the letters were addressed at the correct address. further, when these letters were sent at correct address and were returned back with the remarks that the addressee was not available, it was not necessary for the management to produce postman to show that he letters were sent at the correct address. this is more so when there is no cross-examination on this aspect and not even a suggestion is given that the letters were not posted or remarks of the postal authorities were incorrect/procured. a worker working with an employer gives his address and any letter addressed by the employer to him at the address given by the workman would be deemed to be proper service of the letter.12. in so far as letters sent to the conciliation officer are concerned, again only the ground that the conciliation officer was not summoned to prove those letters, these letters are ignored. however, the labour court, in the process, glossed over a very relevant piece of document, namely, acknowledgment cards which had been received back evidencing the receipt of those letters by the conciliation officer. these ad cards were produced and exhibited by the witnesses of the management. the conciliation officer, to whom the letters were sent, is a government officer and letters were sent to him at this office. when the ad cards are received back it would be sufficient proof of service of letter to the conciliation officer and, thereforee, it was not necessary for the management to produce the conciliation officer for proving those letters that too in the absence of any cross-examination. that apart, in cross examination of the workman, he himself admitted that the conciliation officer had told him that he had received a letter from the management.13. once the service of these letters is proved, effect thereof is stated by the labour court itself, namely:'of course, all these letters taken together prima-facie would make the court believe that the management was interested in providing duty to the workman but the workman was not interested.'14. for all these reasons, i am of the view that the impugned award dated 17th february, 1990 holding that the services of the workman were terminated cannot be sustained. on the other hand, the evidence would show that it is the workman who started absenting himself from the duty and did not join back the services inspire of letters sent to him. the award is accordingly set aside and the reference answered against the workman.15. this writ petition is allowed in the aforesaid terms.