*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2828/1996
% Date of decision: 17th May, 2010 RAM LAL ..... Petitioner Through: Mr. Rajiv Dewan, Advocate.
M/S MIRACLES AIR FREIGHT PVT LTD & ANR. ..... Respondents Through: Ex parte.
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner workman by this writ petition impugns the award dated 30th October, 1993 of the Labour Court holding the petitioner workman to be guilty of misconduct and upholding the action of the respondents employer of terminating the services of the petitioner workman. The respondent employer has remained absent inspite of service. It was inquired from the counsel for the petitioner workman whether the respondent company still exists. The counsel states that as per instructions received by him it does.
2. The petitioner workman was working as a peon with the respondent employer since May, 1962 and with last drawn salary as Rs.300/- per month. It was his case that the respondent employer in the year 1978, though it gave increment and annual leave wages to the other employees, did not give the same W.P.(C)2828/1996 Page 1 of 4 to the petitioner workman and illegally terminated his services w.e.f. 24th December, 1979 without any notice whatsoever. The respondent employer contested the claim before the Labour Court by contending that it was the petitioner workman who started remaining absent from work without any intimation or leave; that a chargsheet was issued to him to explain his absence from 1st September, 1977 to 14th September, 1977 and for which period the petitioner workman gave leave application subsequently on 19th September, 1977; that the petitioner was also informed that as on 8th October, 1977 he had availed excess leave of 87 days; however, notwithstanding the same the petitioner workman again absented from 13th October, 1977 to 19th October, 1977 and also did not reply to the show cause notice; that another letter dated 2nd January, 1978 was issued to the petitioner workman for his absence on 29th December, 1977 but the petitioner workman again absented towards the end of December, 1977; that another letter dated 7th September, 1979 was issued to the petitioner workman to explain his repeated absence; other letters dated 29th May, 1978, 21st November, 1978 and 16th January, 1979 were also issued to the petitioner workman to explain his absence; that ultimately vide letter dated 29th September, 1979 the petitioner workman was asked to attend the office which he failed to do and the respondent employer thus presumed that the petitioner workman had no explanation to offer and struck off his name from the rolls of the company. It was also denied that the increments of the petitioner workman were stopped.
3. The Labour Court found that the petitioner workman in his replication has admitted the receipt of the letters aforesaid and further pleaded that all the said W.P.(C)2828/1996 Page 2 of 4 letters were replied to but the respondent employer did not give any acknowledgement of receipt of the replies.
4. The Labour Court on the basis of the pleadings and evidence led before it found that the petitioner workman had been in the habit of continuously remaining absent without prior sanction; that the respondent employer had asked him to furnish medical certificate and had also intimated him that he had already availed excess leave; that the petitioner workman had failed to prove that any replies were given by him to the said letters of the respondent employer. The Labour Court thus concluded that the petitioner workman was in the habit of remaining absent from duty and inspite of opportunities to furnish explanation had failed to give any explanation and was thus guilty of misconduct.
5. The aforesaid findings of the Labour Court are findings of fact which cannot be disturbed. The counsel for the petitioner workman has however contended that even if the petitioner workman was guilty of misconduct, he could not have been dismissed without holding any inquiry and which it is contended has not been done. Reliance in this regard is placed on DTC Vs. Arun Kumar WP(C)3345/2000 decided by the undersigned on 18th March, 2010. It was also held in the said judgment that abandonment is a misconduct and cannot constitute a ground for termination without holding an inquiry.
6. In the present case however the award records that the petitioner workman was chargesheeted. The counsel for the petitioner workman contends that no inquiry report has been proved before the Labour Court. Even if it be so, it stands admitted that repeated notices were given by the respondent employer to the petitioner workman with respect to the admitted absenteeism of the petitioner workman. Replies which the petitioner workman claimed to have given to the W.P.(C)2828/1996 Page 3 of 4 said notices have been held to be not proved. It is thus not as if the petitioner workman has been condemned unheard. The petitioner workman was given ample opportunities and thus the principles of natural justice have been complied with. Once, it is found that the principles of natural justice were complied, the holding of a formal inquiry would be irrelevant. The respondent employer is not a large corporation but a private limited company. It cannot be expected to follow formal procedure. As long as it is established that the petitioner workman has not been condemned unheard, no error capable of interference can be found in the order of the Labour Court. It cannot be lost sight of that the respondent employer's business would come to an end if the employees chose to remain absent at their will. An employer cannot be compelled to continue with the employees who are found guilty of habitual absenteeism, bringing the work of the office/business of the employer to a standstill. For this reason also, no case for exercise of discretionary jurisdiction is made out.
7. There is no merit in the petition. The same is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW
17th May, 2010
W.P.(C)2828/1996 Page 4 of 4