The Management Of The Hindu, Ins Building, Rafi Marg, New Delhi v. The Presiding Officer, Industrial Tribunal No. Ii, Delhi And Anr

Dr. Mukundakam Sharma, J.

1. The present petition is filed by the Management of M/s. The Hindu and is directed against the award dated 19th May, 1998, passed by the Presiding Officer, Industrial Tribunal No. II, Tis Hazari Courts, Delhi in I.D. No. 1586/1990. By the aforesaid award, the Tribunal held that the services of the respondent/workman were terminated illegally and unjustifiably by the Management and he was directed to be reinstated in service with full back wages.

2. Before dealing with the contentions raised by the parties, it would be necessary to state certain background facts leading to the reference, on the basis of which the aforesaid award was passed by the Industrial Tribunal. The petitioner/Management engaged the respondent-workman as a driver on daily wage basis some time in the month of February, 1987. It is alleged by the petitioner/Management that the respondent-workman was engaged to drive the car for the Special Correspondent who was to do a special assignment and that the workman was engaged only for the period of the said special assignment. It is also alleged that respondent-workman abandoned his job with effect from 27th May, 1989. However, the respondent-workman raised an industrial dispute alleging that the petitioner/Management terminated his job illegally and the said dispute raised by the respondent-workman was referred to the Industrial Tribunal on the following terms:

Whether the termination of services of Shri Babu Ram Yadav is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect

After receiving the pleadings of the parties and the evidence adduced, the Presiding Officer of the Industrial Tribunal passed the award dated 19th May, 1998 holding that the petitioner/Management terminated the services of the respondent-workman illegally and unjustifiably and to reinstate the said respondent-workman in service with full back wages. Being aggrieved by the same, the present petition is filed in this Court.

3. It was contented by the Counsel appearing for the petitioner that the award passed by the Tribunal was illegal and without jurisdiction as the plea of abandonment of job as raised by the petitioner/Management was rejected with a perverse finding. It was also submitted that the finding of the Tribunal was not only perverse but the same also was based on conjectures and surmises, as it was not the case of the petitioner/Management that the respondent-workman abandoned his work from 25th May, 1989. It was submitted by the Counsel for the petitioner that it was nobodys case that the respondent-workman remained absent from 25th May, 1989 to 27th May, 1989, and therefore, the findings arrived at by the Tribunal holding as such are totally erroneous. It was also submitted by the Counsel for the petitioner that the respondent-workman was engaged on daily wage basis which was conclusively proved in the reference and the same being the position, the Tribunal could not have held that the case was of termination of the service amounting to retrenchment and also in holding that Section 25-F of the Industrial Disputes Act is applicable. According to him, the present case is not a case of retrenchment, nor the provisions of Section 25-F of the Industrial Disputes Act could be said to be applicable to the facts and circumstances of the present case.

4. Counsel appearing for the respondent-workman, however, submitted that what is sought to be done by filing the present writ petition is to call upon the Court to re-appreciate the evidence once again by the Writ Court for arriving at a contrary finding. It was also submitted that the present case is a pure and simple case of retrenchment and, therefore, the Management acted illegally in not complying with the provisions of Section 25-F of the Industrial Disputes Act which provision according to the Counsel for the respondent-workman is fully applicable to the facts and circumstances of the present case.

5. The evidence on record proves and establishes that the respondent-workman was engaged on daily wage basis as a Driver by the petitioner/Management some time in the month of February, 1987 and that he continued to work as such in the same capacity. It is also the case of the petitioner/Management that the respondent-workman abandoned his job with effect from 27th May, 1989. The same was the specific case of the petitioner/Management in the reply to the claim and also in the affidavit filed by the Management by way of evidence. In the cross-examination, however, the Management witness stated that the workman himself started absenting from 25th May, 1989. The Tribunal solely relied on the said statement and on the basis thereof held that the workman absented from 25th May, 1989 to 27th May, 1989 and, therefore, if at all it was absence of the workman from duty only for two days and therefore, the same could not be a case of abandonment of job. The Tribunal also held the case to be a case of retrenchment on the ground that the Management failed to refute the allegations made in the demand notice dated 27th May, 1989 by not sending any reply to the said demand notice. It was also held by the Industrial Tribunal that Section 25-F of thewould also apply to daily wage employee.

6. In this connection, reference may be made to the decision of the Supreme Court in the case of Himanshu Kumar Vidyarthi and Others v. State of Bihar and Others, reported in (1997) 4 Supreme Court Cases 391 [LQ/SC/1997/570 ;] ">(1997) 4 Supreme Court Cases 391 [LQ/SC/1997/570 ;] [LQ/SC/1997/570 ;] . In the said decision, it was held by the Supreme Court that when temporary employees work on daily wages and they are disengaged from service, the same cannot be construed as retrenchment under the Industrial Disputes Act. It was categorically held in the said decision that the concept of retrenchment cannot be stretched to such an extent as to cover those employees who work on daily wages. It was also held in the said decision by the Supreme Court that the daily wage employees have no right to the post and, therefore, their disengagement cannot be termed as retrenchment and such disengagement cannot be held to be arbitrary also. Similar is the decision of the Supreme Court in the case of Executive Engineer (State of Karnataka) v. K. Somasetty and Others, reported in (1997) 5 Supreme Court Cases 434 [LQ/SC/1997/806] .

7. In my considered opinion, the ratio of the aforesaid decisions of the Supreme Court are squarely applicable to the facts and circumstances of this case. The respondent-workman was engaged on daily wage basis, in which capacity he worked for two years with the petitioner/Management when, according to the Management, the workman himself abandoned his job. Merely because in the cross-examination, the date of not reporting for duty was stated as 25th May, 1989, it was not possible to deduce therefrom that even if there be any abandonment of job, it was only for two days. The findings of the Presiding Officer, Industrial Tribunal, therefore, are found to be erroneous and contrary to the law laid down by the Supreme Court.

8. However, during the course of arguments, Counsel appearing for the petitioner/Management submitted that the Management was willing to settle the matter out of Court with the respondent-workman and that it was willing to pay a sum of Rs. 75,000/- to the respondent-workman over and above the amount of Rs. 27,000/- which has already been paid to the workman by the Management pursuant to the order of the Industrial Tribunal.

9. It is an admitted position that pursuant to the orders of the Industrial Tribunal and the orders passed by this Court, an amount of Rs. 27,000/- has since been paid by the petitioner/Management to the respondent-workman. In my considered opinion, if another amount of Rs. 75,000/- is ordered to be paid to the respondent-workman, the same would meet the ends of justice. Accordingly, the award passed by the Industrial Tribunal is set aside and it is ordered that an amount of Rs. 75,000/- shall be paid to the respondent-workman by the petitioner/Management within eight weeks from the date of this order, as against all the claims of the workman against the Management. This payment shall be over and above the payment of Rs. 27,000/- which has since been made by the Management to the workman. On payment of the aforesaid amount of Rs. 75,000/- the entire claim of the workman shall stand satisfied and there shall be no obligation on the part of the petitioner/Management to reinstate the respondent-workman in service. This order is made considering the peculiar facts and circumstances of the present case and also taking notice of the fact that the respondent-workman was engaged on daily wage basis and continued to work in such capacity as a daily rated worker. While passing the said order, this Court also has taken notice of the statement made by the petitioner/Management that it has lost confidence and trust so far the workman is concerned.

10. With the aforesaid modification in the award passed by the Industrial Tribunal, the writ petition stands disposed of, but, without any costs. Pending application stands disposed of accordingly.