Completion of 240 days of service is necessary to invoke statutory protection under the Industrial Disputes Act, 1947.

JUDGMENT (ORAL)

G.S.Sandhawalia, J. (Oral) - CM-1554-LPA-2022

1. By this application, the applicant-appellant seeks condonation of delay of 11 days in filing the appeal.

2. For the reasons mentioned in the application which is duly supported by an affidavit of the applicant-appellant, the application is allowed and the delay of 11 days in filing the appeal is hereby condoned. LPA-670-2022

3. The consideration in the present appeal is to the order dated 20.04.2022 passed by the learned Single Judge in CWP-1388 of 2015, whereby the writ petition of the respondent No. 2/management was allowed and the Award dated 03.12.2014 (Annexure P-12), passed by the Labour Court was set aside.

4. The reasoning given by the learned Single Judge is that the workman himself remained absent from duty from 17.01.2008 till 16.05.2008 and he had never completed 240 days. The Labour Court had wrongly assumed that there was a working period of 240 days and thus, wrongly adverse inference had been drawn that the original record had not been produced which is also contrary to the statement of witnesses produced by the employer showing that the original record was duly produced before the Court. The photocopies of the same were exhibited without any objection and therefore, the adverse inference drawn by the Labour Court was held to be not legally sustainable.

5. The explanation as such was that he has not absent from duty voluntarily and was facing medical problems, was also rejected on the ground that there was nothing on record to even remotely suggest the same; except the bald statement of the appellant-workman. The statement made by the witness before the Labour Court was to the effect that he was having ESI Treatment Card but he had never taken any treatment from any recognized ESI Hospital/Dispensary. The Labour Court reasoning was that dispensation of service has been done by treating the absence to be a mis-conduct was also not approved by the learned Single Judge, on the ground that the appellant had not joined back after the said date or made any representation for the same. However, the management had asserted that this is a case of abandonment by the employee. It was noticed by the learned Single Judge that letters were written to the appellant to join the duty but he has chosen not to join duty and once he had not completed 240 days of service, there was no requirement of holding any enquiry to dispense with the service of the respondent-workman. The appellant attained the statutory status protection by the retrenchment clause, and it was a pure and simple 'master-servant relationship' between the employer and the employee, giving an absolute right of 'hire and fire' to the employer.

6. Learned counsel for the appellant has tried to convince us that on account of the illness as such which is in the form of mental depression as such, the employee had been absent and since the Award dated 03.12.2014 (Annexure P-12) had been passed in his favour by the Labour Court, Gurugram, to reinstate him with 40% back wages w.e.f. 02.09.2008 onwards, it should not have been interfered with, keeping in view the settled principle of law that the writ Court should not interfere with the finding of fact.

7. We have gone through the record and find out that it is a admitted case as such of the appellant-workman himself that he was absent from 17.01.2008. In the demand notice dated 21.05.2010, issued under the provisions of Section 2A of the Industrial Disputes Act, 1947 (Annexure P-3) shows that he had claimed that he had been initially appointed on the post of Assistant Fitter in the month of November 2005 and worked continuously upto 16.01.2008 and thereafter, was absent and joined duty only on 01.06.2008. The defence before the Labour Court of the Management was that he had initially joined as Helper in January 2007 and has not completed 240 days. There was also denial of his poor mental health and the fact that he had joined duty on 01.06.2009. It was also pleaded