JAI KISHAN DASS AND BROS Vs. PRESIDING OFFICER

JUDGEMENT

(1.) The writ petition challenges the award dated 25.5.1995 in the L.C.I.D.No.618/1984 between the management of M/s.Jai Kishan Dass and Brothers (the petitioner herein) and the workman-Hukam Chand (respondent No.3 herein). The terms of reference were, Whether Sh.Hukam Chand has abandoned the services of his own or the same have been terminated by the management illegally and/or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this respect. The respondent was a workman with the petitioner management at the wages of Rs.450/- per month. He alleges that when he asked for a raise he was dismissed from service on 10.8.1983. The petitioner management, on the other hand, alleged that the last drawn wages of the workman was Rs.450/- per month, that the factory of the management was shifted from Kingsway Camp to Naraina Industrial Area and ever since the shifting the respondent/workman did not join his duties and remained absent. The case of the petitioner management is that the respondent abandoned his services and that it was not a case of the management terminating the employment of the workman. The Labour Court found the contention of the management to be right. However, the Labour Court, in view of the judgment of the Supreme Court in the case of D.K.Yadav vs. M/s. J.M.A. Industries Ltd., 1993 LLR 583 held that although the standing orders provided for loss of lien in case of prolonged absence, the workman was required to be given an opportunity of hearing before any punitive action could be taken. The management admittedly had not issued any notice to show cause and did not hold any enquiry. The workman was, therefore, found to be deemed to have been in service without break. Coming to back wages it was observed that there was no evidence from the side of the management that the workman was in fact employed and, therefore, awarded full back wages. The petitioner management have assailed both the findings of the Labour Court. It is pointed out by the petitioner that respondent No.3 did not come for the work from 10.8.1983 that on 20.8.1983 he sent a notice to the petitioner management seeking his reinstatement and back wages, that notice was duly replied to on 16.9.1983 by which respondent No.3 was called upon to join his duties immediately, that on 30.9.1983 respondent No.3 sought conciliation proceedings before the Labour Court, that on 30.9.1983 the petitioner again reiterated his earlier stand and asked respondent No.3 to join his duties failing which it may be deemed that he had abandoned his employment and that despite such a stand the reference was made to the Labour Court. Even during the pendency of the proceedings, the Labour Court passed an order directing respondent No.3 to report for duty with effect from 30.1.1986. The petitioner says that respondent No.3 was not interested in joining his duties and he filed an application stating that he had been prevented from joining his duties. Yet another application was moved by the petitioner asking for a direction on respondent No.3 to join his duties. Respondent No.3 thereafter came for duty just for a day and thereafter remained absent. The fact that he had come for only for a day was admitted by respondent No.3 before the Labour Court.

(2.) Mr.Kailash Vasudev, learned Senior Counsel appearing for the petitioner, stated that the Industrial Employment Standing Order was not applicable to the petitioner. There is nothing on record to show that Industrial Employment Standing Order was applicable to the petitioner. Therefore, the principles enunciated by the Supreme Court in the case of D.K.Yadav (Supra) cannot be attracted to this case.

(3.) Mr.Kailash Vasudev invokes the theory of 'useless formality' by referring to the aforesaid dates on which respondent No.3 was asked to join his duties and respondent No.3 failed to comply with such demand. It is also pointed out that before the Conciliation Officer respondent No.3 was warned that in case he did not join his duties it can be presumed that he had abandoned his job. The fact that respondent No.3 had abandoned is more than evident from the above details. Inspite of repeated demand from the petitioner requiring respondent No.3 to join his duties, he did not join his duty and preferred to remain absent while at the same time he agitated his claim before the Labour Court. The facts of this case are very similar to the facts in the case of Aligarh Muslim University and Ors. vs. Mansoor Ali Khan, (2000) 7 SCC 529. In that case an employee who was on leave was given an extension clearly conveying that in case he did not join at the end of the extended period he would be deemed to have vacated the post. Inspite of this he did not come back to join his post. The Supreme Court found that in this situation the employee was not entitled to the relief of reinstatement. The court traced the history of development of useless formality theory. In the case of S.L.Kapoor vs. Jagmoah and Others, (1980) 4 SCC 379 the Supreme Court held that if the impugned order does not cause any prejudice the order should not be interfered with even if the rules of natural justice had been violated while passing the order. Going a step further in K.L.Tripathi vs. State Bank of India , (1984) 1 SCC 43 the Supreme Court held that the prejudice caused by an order in violation of natural justice should be a de facto prejudice. Accordingly unless some real prejudice is caused to a workman he cannot be heard to say that he has to be reinstated simply because the rules of natural justice, namely, giving him an opportunity to explain and holding proceedings to enquire into the misconduct, were not complied with. The same view was taken by the Supreme Court in the case of State Bank of Patiala vs. S.K.Sharma, (1996) 3 SCC 364.