Mr. Sunil Choudhary, Adv v. MURLIDHAR VIJAY KUMAR ORS

Judgment

1. The present Petition has been filed under Article 226 and 227 of the Constitution of India impugning the award dated 07.01.2019 passed by the learned POLC-V, Dwarka Courts, Delhi [hereinafter referred to as “Impugned Award”]. By the Impugned Award, the learned Labour Court gave a finding that the Petitioner/Workman was not terminated by the Respondent No.1/Management No.1 but that the Petitioner/Workman had abandoned his job and thus, learned Labour Court declined the Claim Petition filed by the Petitioner/Workman.

2. At the outset, learned Counsel for the Petitioner/Workman submits that since the offer of the Respondent/Management to take back the Petitioner/Workman on its rolls was rejected by the Petitioner/Workman before the learned Labour Court, the issue qua reinstatement would not survive. Accordingly, the challenge in the present Petition is limited by the

learned Counsel for the Petitioner/Workman to the ground of alleged illegal Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 termination of the Petitioner/Workman.

3. Learned Counsel for the Petitioner/Workman submits that although it was the case of the Respondent/Management that the Petitioner/Workman abandoned his job, the Respondent/Management failed to show any document/communication that was sent by the Respondent/Management to the Petitioner/Workman stating that he had abandoned the job. However, he fairly concedes that the Petitioner/Workman did not join services of the Respondent/Management despite the offer.

4. Learned Counsel for the Petitioner/Workman submits that his challenge in the present Petition is to the fact that the finding of abandonment of the job by the Petitioner/Workman was given by the learned Labour Court without the Respondent/Management leading any evidence, to show that the Petitioner had abandoned his job. Learned Counsel for the Respondent/ Management submits that learned Labour Court had found the Petitioner to be a Workman and had also given a finding that he was employed with the Respondent/Management but did not show as to how the Petitioner/Workman had abandoned his job. Relying on the judgment of the Bombay High Court in Ocean Creations v. Manohar Gangaram Kamble and Anr.1 the Petitioner/Workman has contended that where the workman claims that his services were terminated by the employer without notice or inquiry and the employer contends that the workman had abandoned his duty, the Coordinate Bench of the Bombay High Court has held that for the employer to claim abandonment of services by the workman, the employer must issue a notice allowing resumption of duty and if the workman is still 1 2013 SCC OnLine Bom 1537 Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 absent, hold a domestic inquiry. It is thus contended that since no notice was given by the Respondent/Management to the Petitioner/Workman, the termination was illegal.

5. Learned Counsel for the Respondent/Management on the other hand submits that the Respondent/Management has in its Written Statement set out that the Petitioner/Workman started his own business of supply of petroleum products by the name of M/s Unique Petco India Pvt. Ltd. while being under the employment of the Management No. l. and thereafter left the services of the Respondent/Management. It was contended that the services were not terminated but it was a case of abandonment of services.

5.1 Learned Counsel for the Respondent/Management further submits that it is in view of this contention that the Petitioner/Workman, in his Statement of Claim, filed by the learned Labour Court did not seek any back wages.

6. In addition, it is contended by the Respondent/Management that although, the averment of abandonment of duty by the Petitioner/Workman and the fact that the Petitioner/Workman had started his own business by the name of M/s Unique Petco India Ltd., was set out in the Written Statement by the Respondent/Management, no evidence was led to dispel the same. It is in these circumstances, that the Impugned Award was passed.

7. Learned Counsel for the Respondent/Management further submits that the Petitioner/Workman has failed to show any ground for interference with the Impugned Award before this Court.

8. In addition, learned Counsel for the Respondent/Management Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 contends that the Petitioner/Workman has admitted in his cross-examination that as on the date of termination, there is nothing due to him by the Respondent/Management. Thus, based on this statement, there can be no further claims by the Petitioner/Workman.

8.1 Learned Counsel for the Respondent/Management further submits that so far as concerns the contentions in respect of violation of Section 25G and 25H of the Industrial Disputes Act, 1947 [hereinafter referred to as "ID Act"], no evidence was led qua the same. The Petitioner/Workman has failed to prove that there were more than 20 employees employed with the Respondent/Management to be an establishment within either of these definitions.

9. Briefly the facts are that the Petitioner/Workman was employed from the year 1999 as Field Representative with the Respondent No.1/Management. The last drawn salary of the Petitioner/Workman was Rs.16,500/- per month. It is not disputed that apart from salary, the Respondent/Management would pay benefits such as LIC premium, however it is the contention of the Petitioner/Workman that he was not granted Bonus, gratuity, ESI or other statutory dues.

9.1 While it is the case of the Petitioner/Workman that his services were terminated on 28.02.2013 without a cause, it is the case of the Respondent/ Management that the Petitioner/ Workman abandoned his services.

9.2 The Respondent has explained that between the end of December, 2013 and January/February, 2014, six Workmen abruptly left their jobs, which included the Petitioner as well as the Petitioners in W.P.(C) 5003/2019, W.P.(C) 10718/2019 and W.P.(C) 5028/2019. It is contended Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 that the Petitioner, Manoj Kumar @ Manphool left the services of the Respondent and started his own business, by the name of M/s Unique Petco India Pvt. Ltd in competition with the Respondent/Management.

10. The record reflects that a reference was sent to the learned Labour Court on 29.07.2015 which set out the following for adjudication: “Whether the services of Sh. Manoj Kumar @ Manphool Kumar S/o Sh. Babu Lal Kiroriwal has been terminated illegally and/or unjustifiably by the management; if so, to what relief is he entitled and what directions are necessary in this respect?”

10.1 The Petitioner/Workman filed his Statement of Claim. The Respondent/Management its Written Statement admitting employer-employee relationship between the parties as well as the year of the appointment. The Respondent/Management, however, as stated above, contended that the Petitioner/Workman has abandoned his job as Field Representative in February, 2013. The learned Labour Court framed two issues. Firstly, whether the Claimant would fall within the definition of a ‘workman’ as defined under Section 2(s) of the ID Act. The second issue that was framed was in terms of the ‘Terms of Reference’ which is produced above in paragraph 10 above.

11. The learned Labour Court examined the evidence lead before it and found that the Petitioner/Workman is covered under the definition of a Workman under Section 2(s) of the Industrial Disputes Act, 1947 and also found that the Petitioner/Workman was an employee of Management No.1/Respondent No.1. The learned Labour Court gave a finding that the Petitioner/Workman admittedly working Respondent/Management for the last 15 years while he was appointed at a Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 salary of Rs.2,200/-, it had increased to Rs.16,500/- in the year 2013, which is more than the minimum wages applicable to a skilled Workman at that time. The learned Labour Court also gave a finding that the Workman was given some benefits, like a life insurance policy as well.

11.1 The Impugned Award has also given a finding Respondent/Management placed on record two documents, Ex. MW1/1 and Ex. MW1/2, which were computer generated record of the Registrar of Companies showing the details of the Company M/s Unique Petco India Pvt. Ltd. on 10.01.2024. It further held that the Petitioner/Workman did not challenge this averment of the Respondent/Management or its authenticity and that the name of the Petitioner Manoj Kumar @ Manphool tallies with the name of the Director of the M/s Unique Petco India Pvt. Ltd. i.e., Manful Kumar.

11.2 The learned Labour Court then relied on the evidence to give a finding that the Petitioner/Workman abandoned his job and obtaining his dues for the month of December, 2013, which was admitted by him during the course of his cross-examination. Thus, the Claim Petition was dismissed. The relevant extract of the Impugned Award is set out below: “36. The managements have infact placed on record two documents Ex.MW1/1 and Ex.MW1/2 which are allegedly computer generated record available on the internet showing the name of one Sh. Manful Kumar as having incorporated a company by the name of Unique Petco India Pvt. Ltd. on 10.01.2014.

37. The managements have argued that the said documents very well prove their contention that the claimant had started his own business and that is why he abandoned the job with the managements.

38. The claimant has not put even a single question to the MW1 challenging the authenticity of the said document Ex.MW1/1 and as such, it becomes clear that by not laying a challenge to the said document Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 Ex.MW1/1, the claimant had admitted its authenticity.

39. Further, in the memo of parties of the claim petition itself the claimant has mentioned his name as Manoj Kumar @Manphool Kumar which very well tallies with the document Ex.MW1/1 placed and proved on record by the management which very clearly prove the defence taken by the management to the effect that it is the claimant who himself abandoned the services on account of having started his own business of the very same product in which the management was dealing.

44. Infact it is an admission on the part of claimant himself that even the premium w.r.t insurance policy taken for his life was used to be paid by the management over and above his monthly salary.

45. Hence, seen from anv angle, there remains no doubt that in these circumstances, it stand proved that the ground taken by the claimant which as per him led to the termination of his services cannot he accepted being not reasonable and the fact that the management has been able to prove that it was the claimant who started his own companv via Ex.MW1/1 the court has come to the conclusion that his services were not terminated bv the management claimant himself who abandoned/resigned from the job in 2013.” it was rather [Emphasis supplied]

12. It is settled law that in a Petition challenging an Award of the learned Labour Court, the High Court is not to reappreciate the facts and evidence. All that is required to be done is to check jurisdictional errors or an error of law which is apparent on the face of the record. The Supreme Court in case of Syed Yakoob v. K.S. Radhakrishnan & Ors.2, held that while exercising jurisdiction under Article 226, the High Court is not to reappreciate all the facts and evidence as an appellate court. The sufficiency or adequacy of evidence and factual inferences drawn therefrom are matters exclusively within the tribunal’s domain and cannot be reopened in writ proceedings. The relevant extract is set out below: “7. The question about the limits of the jurisdiction of High Courts in 2 1963 SCC OnLine SC 24 Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a legitimately exercised (vide Hari Vishnu writ of certiorari can be Kamath v. Syed Ahmad Ishaque [(1955) 1 SCR 1104] Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam [(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC 1168]” [Emphasis Supplied]

13. The Respondent/Management has laid emphasis on the fact that no evidence was placed on record in respect of the contention of the Petitioner/ Workman that he was entitled to gratuity, Provident Fund and other such Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 benefits. It is thus contended that there is no proof that the Respondent/ Management employed more than 20 persons so as to be statutorily liable to make these payments.

14. The evidence of the Petitioner/Workman lead before the learned Labour Court shows that so far as concerns the factum of the salary as well as the insurance policy the same was not denied by the Petitioner/Workman. It was also not denied during his cross-examination that 5 other Workmen left the services around the same time, although it is stated therein that he is not aware of when they left the services. However, the Petitioner/Workman has admitted that they all initiated legal proceedings at the same time. The evidence further sets out that the Claim Petition was filed before the learned Labour Court seeking relief of allowances such as gratuity, provident fund, bonus and overtime. It is apposite to extract the relevant cross-examination of the Petitioner/WW-1 which is set out below: “I have studied upto 10th standard. I am permanent resident of Village Kheria, Post Pilani, Distt. Jhunjhunu, Rajasthan. I shifted to Delhi alone in 1999. My real maternal uncle Sh. Bhagirath, who was already employed with the management no.1 informed me that the management no.1 is in need of an employee and accordingly, I approached the management no.1 through his reference. I used to report to Sh. Nawal Kishore Aggarwal, Sh. Narender Kumar and Sh. Manish Kumar. As per my knowledge, Sh. Nawal Kishore was having no concern with management no.1 during my tenure. I joined the management no.1 in December, 1999 but I do not remember the exact date. I was appointed as a Field Worker having job profile as directed by the management consisting of accompanying the goods vehicle till they cross the border, matters concerning bank work and any other work assigned by management no.1. I had no prior experience w.r.t the work assigned by me. I usually accompany the vehicles till Noida border. I follow the goods vehicle on the scooter provided by management no.1. My date of birth is 15.04.1977. I obtained my driving licence after the year 2000 from Delhi. I never had driven any vehicle till the date I was not having driving licence. I do not remember the date and month of the year 2000 in which I obtained my driving licence. I can barely able to understand English language. My counsel has made me to understand the contents of Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 proceedings filed before ALC, demand letter and the present claim petition, which have been initiated on my instructions. The claim petition has been filed w.r.t. obtaining the reliefs of overtime, PF and bonus and not for any other relief.” [Emphasis supplied]

15. This Court has also examined the order sheet before the learned Labour Court. The order dated 14.07.2016 records that the authorised representative of the Management states that the Management is ready to take the Workman back to work without prejudice to the rights in the matter. It further sets out that the representative of the Workman would inform the Court as to whether the Workman is ready to join his duties or not. The matter was thereafter adjourned. Thereafter, the order dated 14.09.2017 records that the Workman is present in Court and he states that his AR is not present in the Court and that he will make submissions in regards to whether he is ready to join back with the Management in the presence of his AR. Thereafter, although the matter was listed on several dates, there was no response given to the offer of reinstatement and the matter proceeded for evidence and the matter was finally decided by the Impugned Award. Thus, although the offer for reinstatement was made, the same was not followed up by the Petitioner/Workman. It is apposite to extract the relevant extract of the orders dated 14.07.2016 and 14.09.2017 in this behalf below: “Order dated 14.07.2016 Perusal of record shows that management no.1 had filed its W.S on the last date of hearing. AR for the management no.1 states that the same is accompanied with affidavit of Sh. Nawal Kishore, Proprietor of management no.2 and separate affidavit of Sh. Manish Aggarwal, Partner of management no.3, wherein, they have adopted the W.S filed on behalf of management no.1 and that no separate W.S is to be filed on behalf of management no.2 & 3. In view of the submissions made by Ld. AR for the management no.1 to 3, matter be now listed for filing of rejoinder/documents, if any/consideration of Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 issues on 03.11.2016. At this stage, AR for the management states that without prejudice to the right to the management, the management is ready to take the workman back on work and that the issue of back wages is disputed by the management. AR for the workman states that he shall inform the court on the next date as to whether the workman is ready to join duties or not. Order dated 14.09.2017 Proxy AR for the workman seeks adjournment on the ground that main AR is unwell today. AR for the managements submits that management has already given its offer to workman to join back duties and he also submits that willingness of workman may be sought in this regard. Workman submits that today his main AR is not available and he will make his submissions in this regard in his presence. On request, put up for tendering affidavit of workman, his cross- examination as well as remaining evidence of workman on 01.02.2018. Workman is directed to supply advance copies of affidavits of his witnesses to the AR for the management atleast one week before next date of hearing. [Emphasis supplied]

16. An examination of the Statement of Claim that has been filed along with the Petition clearly shows that the Petitioner/Workman has only sought his dues in the matter, pertaining to provident fund, gratuity, bonus, etc. No claim for back wages or other demands has been made. Given the fact that the Petitioner/Workman services Respondent/Management even though they were offered to take him back in the year 2017. This reflects the intention of the Petitioner.

17. The Petitioner/Workman has relied on the judgment of the Bombay High Court in the Ocean Creation case to submit that a notice must be given in the case of plea of abandonment of services is taken by the Management and in the present circumstances, the Respondent/Management has not given Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 any notice after the job was abandoned. Admittedly, no notice was given by the Respondent/Management, however the contention of Respondent/Management that once the Management became aware that the Petitioner/Workman had left the services of the Respondent/Management to set up his own competing business along with some of their other employees, there was no requirement of giving any such notice.

17.1 Undisputably however, once a dispute was raised by the Petitioner/ Workman, the Respondent/Management did offer the job back to the Petitioner/Workman, as is recorded above and this offer was not accepted by the Petitioner/Workman.

18. No doubt that it is settled law that abandonment is a question of intention and has to be decided in light of surrounding circumstances of each case, as has been held by the Coordinate Bench of the Bombay High Court in the Ocean Creations case. The surrounding circumstances in the present case however are that six persons, [four of whose petitions are listed before this Court] were working on several posts such as assistants, accountants, field representatives, etc. for an extended period of time, all six persons leave the services. Two of these persons Petitioner Shiv Kumar and Petitioner Bijender settled their dues and left their employment. All six persons file a statement of claim not for back wages but for allowances such as over time, bonus etc. The Respondent/Management finds out that the Petitioner/Workman has set up his own competing business with other employees. The offer of reinstatement that was made to the Petitioner after the Claim Petition was filed, was not accepted.

19. No evidence is adduced in respect of over time work, bonus or other Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019 requirements. The Workmen have been unable to show Respondent/Management employed more than 20 persons, so as to be liable for payments of statutory dues such as provident fund, bonus, gratuity, etc.

20. As set out above, it is settled law that this Court is not required to act as an Appellate Court to re-examine and reappreciate the evidence unless jurisdictional error or errors of law apparent on the face of the record can be seen. In the Syed Yakoob case, the Supreme Court has held that although the jurisdiction of the Writ Court is supervisory in nature, it is not entitled to act as the Appellant Court. If there is a finding based on no evidence, then this Court interfere with the Award passed by the learned Labour Court. The findings which have been discussed above have been made based in the evidence produced before the learned Labour Court.

21. The examination by this Court does not show any jurisdictional error so as to interfere with the Award passed by the learned Labour Court.

22. The Petition is accordingly dismissed.

23. The parties will act based on the digitally signed copy of the order. AUGUST 25, 2025/r/ha TARA VITASTA GANJU, J Signature Not Verified Digitally Signed By:RAHUL Signing Date:20.09.2025 17:47:39 W.P.(C) 6348/2019