Mr. Alok Bhasin and Mr. Kamal Kant Tyagi, Advocates v. SHRI SURESH MALIK

Judgment

1. The instant writ petitions under Articles 226 and 227 of the Constitution of India (hereinafter as the “Constitution”) has been filed on behalf of the petitioner/Management namely M/s Apollo Hospitals Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 Enterprises Private Limited against the respondent/workmen i.e., Mr. Suresh Malik and Mr. Vineet Chawla, thereby, seeking setting aside of both the awards dated 15th May, 2018 (hereinafter as the “impugned award”) passed by the learned Presiding Officer, Labour Court – V, Dwarka Courts, Delhi (hereinafter as the “Labour Court”) in Industrial Dispute bearing ID No. 1227/16 titled as Sh. Suresh Malik vs. M/s Apollo Hospital Enterprises Ltd. and Sh. Vineet Chawla vs. M/s Apollo Hospital Enterprises Ltd. The learned Labour Court has passed two separate awards in the ID No. 1227/2016 in favour of the respective workmen wherein, the workmen were granted the relief of reinstatement with full back wages and continuity of services. 2. Since both the writ petitions arise out of the same impugned award, this Court finds it appropriate to decide the instant writ petitions i.e., W.P. (C) No. 11492/2018 and W.P. (C) No. 11585/2018 vide a common judgment. Therefore, for the sake of convenience, since the facts, pleadings and submissions of the instant writ petitions are similar, this Court shall adjudicate the instant matter accordingly. FACTUAL MATRIX 3. The workmen namely Mr. Suresh Malik (in W.P. (C) No. 11492/2018) and Mr. Vineet Chawla (in W.P. (C) No. 11585/2018) joined the Management w.e.f. 17th May, 2000 and 2nd January, 2001, respectively, on the post of “Architect Assistant” and the appointment letter was issued by the Management to Mr. Suresh Malik and Mr. Vineet Chawla on 4th August, 2000 and 2nd March, 2001, respectively. 4. As per the aforesaid appointment letters, the workmen were appointed on probation for a period of twelve months which may be Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 extended for a further period of six months, if considered necessary by the Management. The workmen’s appointment was also terminable by one month’s notice on either side or on payment of one month’s salary in lieu of the notice to the other party. Further, during probation, the service of the workmen could be terminated without notice if there is a reason to do so. 5. In the interregnum, an industrial dispute was raised by the workmen alleging that on 28th May, 2003, when the workmen went to report for their duty, they were prevented from doing so and the Management also directed their security personnel to not allow the workmen to enter the Management's premises. It was also alleged that the workmen were forced to tender their resignation by putting signatures on blank paper which the workmen refused to do so. Further, when the workmen refused to tender their resignation as asked by the Management, they were threatened that their services shall either be terminated or they shall be transferred to a far-flung area of the country. 6.

Thereafter, the parties participated in the conciliation proceedings under the Industrial Disputes Act, 1947 (hereinafter as the “Act”) for the resolution of their disputes. Upon failure of the conciliation proceedings, a reference was made by the learned Deputy Labour Commissioner, GNCTD, Delhi to the learned Labour Court while exercising its power under Sections 10(1)(c) and 12(5) of the Act read with notification bearing no. F-24(3317)/2003/Lab/4481-4486 dated 8th December, 2003. The said reference sent to the learned Labour Court with respect to both the workmen reads as follows: “Whether Sh Suresh Malik S/o Late Sh. P.C. Malik have Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 abandoned the services, or his services have 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?” *** “Whether Sh Vineet Chawla S/o Late Sh. P.C. Chawla have abandoned the services, or his services have 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?”

7. The aforesaid industrial dispute was registered as ID No. 1227/16, wherein, the workmen filed their statement of claim. Following the same, the Management filed its reply before the learned Labour Court where it was submitted that the respondents/workmen are not covered by the definition of “workman”, rather, covered by the exception as laid down under Section 2(s)(iv) of the Act since they were holding a supervisory post. 8. It was also stated by the Management before the learned Labour Court that the workmen’s services were never terminated by the Management at any point of time and they were offered to get transferred to Chennai, however, the said offer was refused by the workmen and later, they stopped reporting to work voluntarily. 9. issues vide order dated 14th January, 2010: Subsequently, the learned Labour Court framed the following “a) Whether the workman is covered under Section 2(s) of Industrial Dispute Act, 1947? OPW b) Whether the services of the workman have been illegally terminated by the management? OPW. c) Whether the workman abandoned the services of the management? OPM Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 d) Relief.”

10. Thereafter, the workmen as well as the Management were examined before the learned Labour Court, wherein it was observed that as per the workmen’s deposition, they were illegally terminated and as the Management’s deposition, abandoned their services w.e.f. 28th May, 2003. 11. After considering the testimonies of the witnesses as well as the the workmen had voluntarily requisite evidence on record, the learned Labour Court decided issue nos. 1, 2 and 3 in favour of the workmen, thereby, holding that the workmen were illegally terminated and that they did not abandon their services voluntarily. While deciding the issue no. 4, the learned Labour Court reinstated the workmen with full back wages along with continuity of services and all other consequential benefits. 12. Being aggrieved by the said impugned awards, the Management has filed the instant writ petitions seeking setting aside of the same. PLEADINGS BEFORE THIS COURT 13. The instant writ petitions were filed on behalf of petitioner/Management seeking setting aside of the impugned award based on the following grounds: “A. The Labour Court failed to take notice that on admitted position the Respondent was holding the post of Architect and was engaged for the ongoing construction work of Apollo Hospital building at Sarita Vihar, New Delhi and which post ceased to exist on completion of the construction activities. The Labour Court failed to take notice and appreciate that since the post of Architect held by the Respondent no the question of his reinstatement on the said post of Architect could not arise. longer existed, Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 The impugned Award, thus, passed is liable to be quashed on this ground alone. B. The Labour Court failed to take notice that the co-worker of the Respondent himself has admitted that the post of Architect no longer existed on the completion of the project at Sarita Vihar and in the absence of availability of the post of Architect no relief, much less, the relief of reinstatement could be granted with full back wages and continuity of service. The Impugned Award, thus, passed is perverse and unsustainable under law. When the post of Architect no longer existed, the question of reinstating the Respondent in service could not under law arise. The Impugned Award, thus, passed is patently illegal and liable to be quashed on this ground as well. C. The Labour Court failed to appreciate and take notice that the Respondent was a qualified Architect and the post of Architect held by him no longer existed on the completion of the construction activities and there being no other project in existence where he could be employed as an Architect, no relief, much less, the relief of reinstatement with full back wages and continuity of service could be awarded. to appreciate D. The Labour Court failed Respondent in his Statement of Claim has admitted that on completion of project at Sarita Vihar, New Delhi, the employees were offered to proceed to Chennai to look after the ongoing projects which offer was declined by the Respondent without any reason or justification. The Respondent having failed to proceed to Chennai as advised by the Petitioner is deemed to have abandoned his service and, as such. the Labour Court could not have come to the conclusion that his services were terminated, much less, illegally. The Impugned Award thus, passed is perverse and is liable to be quashed on this ground as well. *** Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 G. In terms of the reference made, the Labour Court was required to determine as to whether the Respondent has abandoned his services or his services have been terminated illegally and/or unjustifiably. Based on tine terms of reference made by the appropriate Government, the Labour Court had framed Issue No. (iii) as to whether the workman abandoned the services of the Management. While deciding this issue, the Labour Court in para 28 of the Impugned Award recorded a finding of fact that all the projects of the Petitioner at Delhi had come to an end and the same was also accepted by the claimant viz the Respondent herein. Treating the aforesaid submission as an admission on the part of the Respondent the Labour Court went on to observe that it was the duty cast upon the Management to prove that it ever called upon the claimant (Respondent herein) and other workmen informing them or taking their consent regarding their transfer to Chennai. The fact of transfer of the Respondent to Chennai has, thus, been accepted and upheld by the Labour Court. Having so held the Labour Court further erroneously went on to hold that not a single person employed in the Project Division in which the Respondent was employed, was examined by Management to prove that such offer/intimation was ever made or conveyed or in pursuance of the same any such person was transferred to Chennai or not. The observations made are perverse and irrelevant for the purpose of adjudication of the industrial dispute referred by the appropriate Government. The Labour Court failed to appreciate that no consent of the workman was needed for his transfer to Chennai in terms of the appointment letter issued to the Respondent as his services were liable to be transferred anywhere in India and which fact has been duly admitted to by the Respondent during his evidence before the Labour Court. The Labour Court failed to appreciate that the Respondent in order to avoid his transfer and joining duty at the Head Office of the company at Chennai deliberately raised the industrial dispute in the Office of the Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 Labour Commissioner which led to the present reference for the adjudication of the Labour Court. *** I. The Labour Court failed to appreciate and take notice that the cause of action in the present case arose on 28.05.2003 when the Respondent stopped reporting at work w.e.f. 28.05.2003, while the Statement of Claim was filed on 04.02.2004 and the affidavit of evidence was filed by him on 04.01.2017 after the matter was remanded back by the Hon'ble High Court to the Labour Court at the instance of the Respondent. The Labour Court failed to appreciate and take notice that it is settled law that where the inordinate delay has been caused in adjudicating upon the matter, then the relief of reinstatement is not to be granted. Reference in this regard is made to a judgment of the Hon'ble Supreme Court in the case of Sain Steel Products vs. Naipal Singh and Ors, 2001 1 LLR 566 (SC) where it was held that it would not be appropriate to put the workman back in service if inordinate delay has been caused in adjudicating the matter. In this case a compensation of Rs. 50,000/- was awarded. The Labour Court also failed to take notice of the judgment of the Hon'ble High Court of Delhi in the case of Pramod Kumar and Another and Presiding Officer and Another, 2006 LLR 302 The Hon'ble High Court has held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. In view of this well established principle of law laid down by the Hon'ble Supreme Court and various High Courts, where inordinate delay has been caused at the adjudication process, in that event relief of reinstatement with back wages and continuity of service cannot be granted and, as such, the Labour Court, even if it was convinced that the Respondent had been refused duty ought not to have directed his reinstatement in service with full back wages. The Impugned Award, thus, passed is patently illegal, unlawful and unjustified and is liable to be quashed.” Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

14. Countering the instant writ petitions, the workmen have filed their written submissions, which are similar in both the writ petitions, and the relevant extracts of the same are as follows: “1. The Respondent is filing written submissions restricted to the issue of- "After lapse of more than 21 years and attaining the age of superannuation whether granting of compensation is the only remedy for workman instead of reinstatement and back wages."

2. That after wrongful/ illegal termination of Respondent on 08.12.2003 the appropriate government referred the matter for adjudication to Labour Court. The first award (ex-parte) dated 10.02.2006 was set aside on 31.03.2009 by the Hon'ble High Court of Delhi with remand back to Labour Court for fresh adjudication which culminated in the impugned award dated 15.05.2018. *** 4. In the present case, the adjudication was initiated in 2003 itself with first award in 2006. The fact of 21 years of litigation cannot be a reason for denying back wages and consequential retiral benefits (even if reinstatement cannot be granted on account of Respondent having attained age of superannuation). the Petitioner/ Management had accepted the 2006 award or even the 2018 award, Respondent would have enjoyed the fruits of reinstatement and would also have been redeemed of stigma of termination.” If SUBMISSIONS (on behalf of the petitioner/Management) 15. Learned counsel appearing on behalf of the Management submitted that the learned Labour Court erred in granting the relief of reinstatement Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 with full back wages and continuity of services to the workmen without any application of judicial mind. 16. It is submitted that the learned Labour Court failed to consider that the workmen were employed as “Architect Assistant” in the aforesaid project, and with the completion of the same, the said position ceased to exist and therefore, reinstating the workmen in the same position is not practically possible. 17. It is submitted that while granting the relief of reinstatement to the workmen, the learned Labour Court erred in not considering that there is no position of the same nature lying with the Management, where they can be absorbed and hence, reinstatement cannot be granted in such cases. 18. It is further submitted that the impugned award was passed erroneously by the learned Labour Court as the workmen have voluntarily abandoned their services and the same cannot be inferred as the illegal termination of services by the Management. 19. It is submitted that with the absence of any work in Delhi, the workmen were offered to be placed in Chennai for the similar nature of work i.e., supervising the construction projects, however, the same was refused by the workmen, thereby, leading to abandonment of services. 20. It is submitted that the learned Labour Court observed in the impugned award that the Management has the power to transfer the workmen to Chennai. Despite the said observation, the learned Labour Court erroneously held that the Management herein failed to prove as to whether consent of the workmen regarding the said transfer was taken. Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

21. It is submitted that the learned Labour Court failed to take into consideration that the consent of the workmen regarding the said transfer is not required as the Management is vested with the power to transfer the workmen to Chennai, which is specifically mentioned in their respective Appointment Letters. 22. is submitted It the Management has not issued any communication regarding the termination of the workmen and that they have voluntarily stopped coming to work w.e.f. 28th May, 2003, thereby, inferring that the workmen have abandoned the services. 23. It is further submitted that there has been a lapse of considerable period since the date of the alleged termination of the workmen and therefore, compensation instead of reinstatement must be provided in such cases as per the settled position of law. 24. In view of the foregoing submissions, it is prayed that the instant petitions may be allowed, thereby, setting aside the impugned award. (on behalf of the respondent/workmen) 25. Learned counsel appearing on behalf of the respondents/workmen vehemently opposed the instant petitions submitting to the effect that the learned Labour Court has rightly passed the impugned award by observing that the workmen were illegally terminated and accordingly, has rightly been granted the relief of reinstatement to the workmen with full back wages. 26. It is submitted that the learned Labour Court has rightly examined the requisite documents on record such as the Appointment Letter of the workmen, Statement of Claim and reply thereof, and testimonies of the Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 witnesses while passing the impugned award. Moreover, it was correct in observing that although the Management is vested with the power to transfer the workmen to Chennai as per the Appointment Letter, no such communication was given to them and the same infers that the Management has illegally terminated the services of the workmen. 27. It is submitted that while passing the impugned award, the learned Labour Court has rightly observed that the Management has failed to examine any other workmen who were employed alongwith the respondents to establish that they have voluntarily abandoned the services. 28. It is submitted that it is a settled position of law that once it is determined that the workmen were illegally terminated, the cardinal rule for granting relief is to reinstate the workmen back to its earlier position and the same has been rightly awarded by the learned Labour Court. 29. It is further submitted that the lapse of considerable period of time from the date of termination of services cannot be taken as a ground for not granting the relief of reinstatement as the said relief is automatically granted due to the illegal termination of workmen’s services and therefore, the learned Labour Court was correct in awarding reinstatement with full back wages and continuity of services instead of mere monetary compensation. 30. Therefore, in light of the aforementioned submissions, it is prayed that the instant writ petitions are devoid of any merit and the same may be dismissed. Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 ANALYSIS AND FINDINGS

31. Heard learned counsel for the parties and perused the material on record, including the Lower Court Record. 32. It is the case of the petitioner/Management that the workmen were illegally terminated respective services by Management, rather, they have voluntarily abandoned the services, thereby, not reporting to work w.e.f. 28th May, 2003. It has been contended that even if the services are said to be terminated illegally, the relief of reinstatement may not be granted as the position of “Architect Assistant”, in which the workmen earlier positioned, ceased to be in existence. Moreover, it has been contended that there has been an inordinate lapse of time since the date of the alleged termination, hence, compensation instead of reinstatement is a feasible relief to be granted in the instant case in terms of the settled position of law. 33. Rebutting workmen/respondents is that they have been illegally retrenched from the petitioner’s case, the contention of their respective jobs when they were refused to tender voluntary resignation due to the completion of work in Delhi. It has been contended that when an illegal termination of the workmen is determined, the relief of reinstatement is automatically provided, and a lapse of considerable time cannot be made a ground for not granting the relief of reinstatement to the workmen. 34. Before adverting to the merits of the instant case, it is apposite for this Court to examine the findings of the learned Labour Court in the Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 impugned award and the relevant paragraphs of the same are reproduced hereinunder – “ISSUE No.3 : Whether the workman abandoned the services of the management? OPM

26. It has come on record that the claimant was employed on the basis of appointment letter Ex.WW2/l and as per the terms and conditions of the same, the claimant could have been transferred to any place in any part of India including Madras (Chennai)

27. The defence taken by the management is to the effect that as all the projects of management at Delhi have come to an end, there was no work left which could have been provided to the claimant at Delhi and accordingly, the management called upon the claimant and other workmen informing them that they are going to be transferred to Chennai in terms of their appointment letters and as per the further case of the management, the claimant instead of having agreed to be transferred to Chennai, had chosen not to report for duty and as such abandoned the same.

28. As far as the stand of the management that all its projects at Delhi have come to an end, the same is also accepted by the claimant.

29. However, even in view of the said submission/admission on the part of the claimant, it was the duty casted upon the management to prove that it ever called upon the claimant and other workmen informing them or taking their consent regarding their transfer to Chennai.

30.As per the admission of the MWl himself during the course of his cross examination, not only the claimant but a number of persons were employed in the very same project division in which the claimant was employed. Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

31.Surprisingly, not even a single person who was employed in the said project division in which the claimant was employed was examined by the management in order to prove that such an offer/ intimation was ever made / conveyed and in pursuance of the same any such person was ever transferred to Chennai or not.

32. Even the MWl, who was stated to be employed in the very same division in which the claimant was employed, has given his address of place of working as of Delhi. If all the persons in the project division in which the claimant was employed stand is no explanation as to why even MWl, who was also employed in the same division, was not transferred to Chennai because as per the stand taken by the management it had got no work left at Delhi which could be provided to its employees. to Chennai, transferred

33. In these circumstances, the only conclusion which can be drawn is that the management is telling a lie on this point as it failed to prove the stand taken by it that all its employees in the project division in which the claimant was employed are required to be transferred to Chennai and the claimant having not willing to do the same abandoned the job.

34. Accordingly, management. issue no.3 is decided against ISSUE No.2 : Whether the services of the workman have been illegally terminated by the management? OPW.

35. In view of the outcome of issue no. 3, the court has come to the conclusion that the services of the claimant were illegally terminated by the management. Issue no.2 is accordingly, decided in favour of the claimant. ISSUE No.4: RELIEF Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

36. In view of the outcome of issue no. 2, the court has come to the conclusion that the claimant is entitled to the relief of reinstatement with full backwages along with continuity of services and all other consequential benefits.”

35. Upon perusal of the impugned award, it is observed that the learned Labour Court has examined the contents of the Statement of Claim and the reply filed therein by the Management herein along with the testimonies of the witnesses and the requisite documents such as the Appointment Letter and Salary Slips of the respective workmen. In the impugned award, it is categorically observed by the learned Labour Court that as per the terms of the Appointment Letter of the respective workmen, the Management herein has the power to transfer the workmen to Chennai. It is further recorded in the impugned award that all the projects existing at the relevant time in Delhi came to an end on 28th May, 2003, which was admitted by both the workmen as well as the Management herein. 36. However, despite recording the same, the learned Labour Court observed that the Management failed to provide any evidence pertaining to the communication given to the workmen with respect to the transfer to Chennai and accordingly, the learned Labour Court held that the workmen’s services were illegally terminated and were not voluntarily abandoned by the workmen. In view of the same, the learned Labour Court awarded reinstatement of the workmen with full back wages and continuity of services. 37. Therefore, this Court deems it apposite to adjudicate the instant writ petitions collectively by framing the following issues – Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 I. Whether the learned Labour Court was right in determining that the workmen were illegally terminated by the Management? II. If the Issue - I is answered in the affirmative, whether the learned Labour Court was right in granting the relief of reinstatement with full back wages and continuity of services to the workmen in light of the peculiar facts and circumstances?

38. Bearing the above in mind, now adverting to the issues at hand. I. WHETHER THE LEARNED LABOUR COURT WAS RIGHT IN DETERMINING THAT THE WORKMEN WERE ILLEGALLY TERMINATED BY THE MANAGEMENT? 39. It is the contention of the Management that the workmen stopped reporting to work voluntarily w.e.f. 28th May, 2003, which leads to the inference that the workmen have abandoned their services voluntarily and have not been illegally terminated by the Management. 40. At this juncture, it is pertinent to understand the meaning and definition of the term “abandonment of services”. The Hon’ble Supreme Court in the case of Buckingham Co. vs. Venkataiah & Ors.1 observed that as per the principles of common law, an inference regarding an employee’s voluntary relinquishment of services or abandonment of services is based on the relevant factors such as the length of absence and other surrounding circumstances. It is further observed that the act of abandoning or relinquishment of services of the employees is always a question of intention and the same cannot be answered effectively in absence of substantial evidence. 1 1963 SCC OnLine SC 79 Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

41. Therefore, for determining whether there was any intention of the workmen to abandon the services in the instant case, it is pertinent to examine the testimonies of the witnesses as well as the documentary evidence available on record. 42. At this stage, this Court has perused the testimony of WW-1 i.e., Mr. Vineet Chawla. In his affidavit, WW-1 testified that he joined the Management on 2nd January, 2001, however, the Appointment Letter was issued to him only on 2nd March, 2001. 43. He also stated that he was drawing a salary of Rs. 10,500/-, working in the capacity of “Architect Assistant”, which is not a supervisory role. He further testified that he was pressurised to tender his resignation, however, upon refusal to do the same, the Management threatened to terminate his services. Furthermore, he stated that he received no communication from the Management regarding his transfer to Chennai, which has been repeatedly and falsely claimed by the Management. 44. In his cross-examination, he admitted that as on 28th May, 2003, there was no work available with the Management in Delhi and that as per Clause 17 of his Appointment Letter dated 2nd March, 2001, the Management has the power to transfer the workmen to any part of the country, including Chennai. However, WW-1 also reiterated in his testimony that no communication regarding the transfer to Chennai, as claimed by the Management, was provided to him. He further stated that he was unjustifiably stopped by the Management to report to work on 28th May, 2003. Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

45. In the testimony of WW-2 i.e., Mr. Suresh Malik, it was testified that he was orally appointed on 17th May, 2000 and the same was reflected on his Employee State Insurance Corporation ID Card. However, he stated that he was issued an Appointment Letter dated 4th August, 2000. He further stated that he was working in the capacity of “Architect Assistant”, drawing a salary of Rs. 6,897/- per month. It was further testified that he was also pressurised to tender his resignation voluntarily, however, when refused to do so, the Management threatened to terminate his services. It was also testified that on 28th May, 2003, the Management did not allow him to report for this work. It is further testified in his affidavit that he did not receive any communication from the Management with respect to his transfer to Chennai. 46. In his cross examination, he reiterated that the Management stopped him from reporting to work and was restricted on 28th May, 2003. It is further testified that he admitted that the job was transferable and that he was aware of Clause 12 of his Appointment Letter, wherein, it was stated that if the workman absents himself from work for eight consecutive days, the said conduct of the workman will be considered as abandonment of services. 47. This Court has further perused the testimonies of MW-1 and MW- 2, who are authorised representatives of the Management and have stated in their testimony that there was no work left in Delhi as on 28th May,

2003. 48. It was further deposed that the workmen were offered to get transferred to Chennai as per Clause 17 of their respective Appointment Letters, however, the same was declined by the workmen, thereby, Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 amounting to abandonment of services. It is further stated that on 28th May, 2003, no security personnel was deployed by the Management and hence, it cannot be said that the workmen were restricted to report to work on the said day. In their cross examination, it was specifically denied that no communication was provided to the workmen for their transfer to Chennai. 49. Before analysing the testimonies of the witnesses herein, it is pertinent to peruse the contents of the Appointment Letters dated 4th August, 2000 and 2nd March, 2001. The relevant clauses therein i.e., Clause 12 and 17 of the said Appointment Letters, which are similar in both the instances, are reproduced hereinunder – “12. Unauthorised absence for eight consecutive days will be construed as voluntary abandomnent of the Company's employment. *** 17. You are initially posted at our Delhi branch. However, you are liable to be transferred to any other branches or department located in.-Chennai or other parts of India or to any other Company of the group.”

50. Upon examining the aforesaid testimonies of the witnesses as well as the contents of the Appointment Letters, it is observed that it is an admitted fact that there was no work available with the Management in Delhi as on 28th May, 2003. 51. It is further admitted that as per the terms of the Appointment Letter, the Management has the power to transfer the workmen to Chennai or any part of the country. The discrepancy in testimonies arose when MW-1 and MW-2 testified that the Management had offered the workmen to get transferred to Chennai for other pending work and the Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 offer was rejected by the workmen, on the other hand, the workmen i.e., WW-1 and WW-2 testified that they have received no communication from the Management with respect to the said transfer to Chennai. 52. In light of the aforesaid discrepancy in the testimonies of the witnesses as to whether any communication of transfer to Chennai was made to the workmen, this Court has meticulously perused the Lower Court Record as well as the documents appended to the instant writ petitions. 53. As stated earlier, it is the case of the Management that the workmen were offered to get transferred to Chennai when the work at Delhi has come to an end and the said offer was not accepted by the workmen. Therefore, upon perusal of the record, including the Lower Court Record, it is observed that the Management has evidently not provided any evidence or document to that effect and in absence of the same, it cannot be inferred that the workmen were offered to get transferred to Chennai. 54. Therefore, given the absence of any material proof to the effect of providing communication with respect to the transfer to Chennai, this Court is of the considered view that the non-providence of any material proof sufficiently indicates that the Management has illegally terminated the services of the workmen, thereby, showing that the workmen had no intent to abandon their services. 55. In light of the foregoing discussion, this Court is of the view that the learned Labour Court has rightly observed in the impugned award that the services of the workmen were illegally terminated by Management. Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36

56. Accordingly, Issue – I is decided favour of workmen/respondents. II. WHETHER THE LEARNED LABOUR COURT WAS RIGHT IN GRANTING THE RELIEF OF REINSTATEMENT WITH FULL BACK WAGES AND CONTINUITY OF SERVICES TO THE WORKMEN IN LIGHT OF THE PECULIAR FACTS AND CIRCUMSTANCES? 57. Since the Issue – I is answered in the affirmative i.e., that the workmen were illegally terminated by the Management as rightly observed by the learned Labour Court, it is imperative for this Court to examine the relief granted by the learned Labour Court in awarding the relief of reinstatement of the workmen with full back wages and continuity of services. 58. Therefore, at this juncture, it is pertinent to mention the contentions raised on behalf of the Management with respect to the instant issue, wherein, the primary contention is that workmen cannot be reinstated to the earlier position of the work as the same ceased to exist from the date of their alleged termination. Secondly, it is contended that compensation instead of reinstatement is required to be granted as there is an inordinate delay of adjudication of the instant matter from the date of the alleged termination, and hence, the learned Labour Court erred in granting reinstatement to the workmen herein. 59. For the sake of proper adjudication of the instant issue, this Court will firstly deal with the issue of cessation of the position of the workmen and secondly, with the issue of lapse of considerable time from the date of termination of services. Signature Not Verified W.P.(C) 11492/2018 & W.P.(C) 11585/2018 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:24.01.2025 10:14:36 Reinstatement of services in case of cessation of position: 60. Before adverting to the issue at hand, it is pertinent for this Court to understand the existing position of law on the concept of reinstatement of services. 61. Reinstatement is a relief granted to the workmen if the Courts are satisfied that the workmen’s services have been wrongfully terminated by the employer and in order to rectify the illegal actions adopted by the employer, the workmen are restored back to their earlier position on the same terms and conditions of their appointment. 62. However, as stated by the Hon’ble Supreme Court in catena of including Deepali Gundu Surwase v. Kranti Junior judgments, Adhyapak Mahavidyalaya2 , in cases of wrongful termination of services, reinstatement with continuity of services and full back wages is the normal rule. However, a transformative principle has been developed over the period and the jurisprudence qua the same has shifted in the recent times, where the ordinary rules of reinstatement cannot be applied automatically or mechanically to all cases of wrongful termination, thereby, granting the relief of compensation in lieu of reinstatement. 63. Observing the aforesaid principle of law, the Hon’ble Supreme Court in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Another3 observed that the reinstatement is not a relief which is granted automatically or mechanically as the relief granted depends on the facts and circumstances of each case, wherein, the concerned Court may grant monetary compensation if it considers