ORDER
Madan B. Lokur, J.
1. Every litigant, especially one appearing in person believes (and I think rightly) that the hearing of his or her case is the most important event of the day. It is sometimes difficult to limit the submissions of such a litigant. The adverse effect of this, which has happened in the present case, is the undue prolongation of the hearing. Arguments in this case would have normally concluded in a couple of days; but, since Respondent No. 1 was represented by her husband, who was so full of the case that the arguments stretched interminably.
2. In fact, on 24th November, 2000 I was compelled to pass the following order:-
“Further arguments heard.
The husband of the workman has been continuously addressing the Court on the last three dates. He has been repeatedly told that if the case does not finish on this side of the vacations, it will have to be released from “part heard”. The oral observations have had no effect and that is why it has been put down in the form of an order.
To come up on 1st December, 2000 in the category of ‘Regular Matters’.”
3. To be fair to the lady, one of the reasons for the long drawn out arguments was that her case has been going on for about 29 years – long enough to try anyone’s patience. She had, therefore, a lot to say in her favor. There was also a change in my jurisdiction, with the result that the case could be heard, if at all, only on a Friday. The case was heard, for almost a full Saturday, but even then the hearing did not conclude. I am, therefore, not giving the various dates of hearing except to say that arguments commenced on 22nd September, 2000 and concluded on 31st August, 2001 when judgment was reserved.
4. Respondent No. 1 (hereinafter called the Respondent) was, at the relevant time, employed with K.G. Khosla & Co. Pvt. Ltd. now K.G. Khosla Compressor Ltd. (hereinafter called the Petitioner).
5. In 1972, the Respondent applied for and was granted maternity leave from 1st March, 1973 till 29th May, 1972. On 30th May, 1972 she rejoined duties but five days later, she applied for medical leave, which was granted from 5th June, 1972 till 10th June, 1972. She is said to have applied for extension of leave which was not granted since the leave application was not accompanied by a medical certificate from the competent authority. The allegation against the Respondent is that she remained absent from her duties from 11th June, 1972.
6. The Petitioner served the Respondent with a letter dated 29th June, 1972 informing her that she was considered absent from duty with effect from 11th June, 1972. According to the Petitioner, this amounted to abandonment of service and, therefore, her name was struck off the rolls.
7. The Respondent replied to the above letter on 3rd July, 1972 contending that the action of the Petitioner amounted to retrenchment, for which she was entitled to compensation under the provisions of the Industrial Disputes Act, 1947. The Respondent requested for payment of her dues, which included retrenchment compensation, notice pay, gratuity, arrears of salary, salary in lieu of earned leave and bonus.
8. The Petitioner sent its response by a letter dated 10th July, 1972 asking the Respondent to attend to her duties on 17th July, 1972, failing which it shall be presumed that she is not interested in joining her duties. It was also stated in the letter that the Petitioner was “constrained to remove your name from the rolls as you have abandoned service…”
9. The response of the Respondent was rather categorical. She stated in her letter of 12th July, 1972 that:-
“You seem to have misread by letter dated 3rd July 1972. I have not asked you, at all, for reinstatement but for compensation which is due to me for retrenchment. It appears that either you are confused or you do not want to face the consequences of having retrenched me from the services of the Company.”
10. The Respondent also stated in this letter that she had visited the offices of the Petitioner and had been informed by K.L. Mehra, Manager Administration on 3rd July, 1972 that her name had been struck off the rolls of the Petitioner. She further stated that “as you have already retrenched me, there is no question of my joining duty from 17th July, 1972.”
11. The allegation relating to K.L. Mehra, Manager Administration was denied by the Petitioner in its letter of 14th July, 1972. A meeting with K.L. Mehra on 3rd July, 1972 was, however, not denied by the Petitioner. The Respondent was once again advised to rejoin her duties on 17th July, 1972.
12. It appears, therefore, that till 14th July, 1972, the name of the Respondent had not been struck off the rolls of the Petitioner. If this were not so, there was no question of asking the Respondent to rejoin her duties. Consequently, it also appears that the letters dated 29th June, 1972 and 10th July, 1972 sent by the Petitioner to the Respondent were a little misleading. As per these letters, the name of the Respondent was struck off the rolls of the Petitioner consequent upon her failure to rejoin her duties from 11th June, 1972 onwards.
13. On 21st July, 1972 the Respondent addressed a letter to the Labour Commissioner narrating her version of the incidents of the recent past. She claimed retrenchment compensation from the Petitioner and “such further compensation as your may think fit.” The Respondent did not state that she went on 17th July, 1972 (the first crucial date) to rejoin duties as per the advise given to her by the Petitioner in its letters dated 10th and 14th July, 1972.
14. The Labour Commissioner acted on the complaint of the Respondent dated 21st July, 1972. This was perhaps with a view of reconcile the disputes between the two parties. The Petitioner appears to have reiterated its stand that the Respondent had abandoned her services and that her services had not been terminated.
15. On 4th September, 1972 (the second crucial date) the Respondent went to the offices of the Petitioner along with J.L. Khanna, Labour Inspector and a representative of the Chief Inspector, (Shops & Commercial Establishments). The Respondent allegedly wanted to rejoin duty but was not permitted to do so. On the same day, the Respondent sent a letter to the Labour Commissioner in which she stated that she met the Chief Executive of the Petitioner B.N. Kapoor but he refused to allow her to join duties. Thereafter, on 6th September, 1972 the Respondent sent a demand notice to the Petitioner requesting her reinstatement with full back wages. In this letter, the Respondent mentioned, for the first time, that she had attended the offices of the Petitioner on 17th July, 1972 but advised to make “make an application for fresh employment…” This was despite the fact that the Respondent was, admittedly, a permanent employee of the Petitioner.
16. Quite obviously, the Petitioner denied the allegations made by the Respondent.
17. The result of all this was that an industrial dispute arose between the parties. This came to be referred by the Lt. Governor of Delhi to the Labour Court on 22nd February, 1973. The term of reference was:-
“Whether services of Smt. Nirmal Chawla have been terminated illegally and/or without any justification, and if so, what directions are necessary in this respect?”
18. The Respondent filed her statement of claim on 22nd March, 1973. In this statement, she made an allegation that she attended the offices of the Petitioner on 17th July, 1972 along with a medical certificate. The Petitioner filed its reply to the statement of claim. Witnesses were examined by the parties and an Award dated 26th September, 1975 was made by the Labour Court.
19. The Labour Court had earlier framed the following issues:-
“1. Whether the petitioner had herself abandoned the job or her services were terminated by the management?
2. As in the reference?”
20. With regard to issue No. 1, the Labour Court held that:-
“It is clear from the evidence of Shri Khanna that Shri K.L. Mehra had refused Mrs. Chawla to join her duties on 4th September 1972. It was in the face of the assertion of the management that she was still on the rolls of the company. There was thus no justification for this refusal. The own admission of the management was that her services had not been terminated which could also include termination by abandonment. Her name was still carried on the rolls of the company. She was, therefore, in the service of the company on the 4th of September, 1972 when she was illegally refused to join her duties. The Issue is decided accordingly.”
21. On issue No. 2, the finding of the Labour Court was as follows:-
“In view of my findings on Issue No. 1, I hold that the services of Mrs. Nirmal Chawla had not been terminated by the management and that she was still on the rolls of the company. She was illegally refused permission to join duties on the 4th September, 1972. She is, therefore, entitled to resume her duties and to continuity of service and full back wages. The award is passed accordingly.”
22. These findings have been challenged by the Petitioner in this writ petition.
23. Two events have taken place during the pendency of this writ petition. Firstly, in an application for stay of the Award dated 26th September, 1975 a learned Single Judge of this Court directed the Petitioner to deposit Rs. 4750/- and granted liberty to the Respondent to withdraw this amount on furnishing security. As regards the rest of the amount payable under the Award, the learned counsel for the Petitioner stated that in case the writ petition fails, the Petitioner will pay 12% per annum interest on the amount found due to the Respondent. This acceptable to the Respondent. In view of the undertaking given, the execution of the Award in excess of Rs. 4750/- was stayed. Significantly, there was no stay of reinstatement of the Respondent. Despite this, the Petitioner did not take the Respondent back on duty.
24. The second fact is that with effect from 1st May, 1978 the Respondent admittedly got alternative employment.
25. During the course of submissions, both parties agreed that the events of two crucial dates have a material bearing on this case. The first crucial date is 17th July, 1972 and the next crucial date is 4th September, 1972.
26. Insofar as the events of 17th July, 1972 are concerned, the Respondent has given three versions.
27. In her letter dated 21st July, 1972 addressed to the Labour Commissioner, the Respondent did not mention that she had visited the offices of the Petitioner on 17th July, 1972. There was no mention about the events of 17th July, 1972 even in the letter sent by the Respondent to the Labour Commissioner on 4th September, 1972. It was only in her letter of 6th September, 1972 (when the Respondent sent a demand notice to the Petitioner) that she mentioned that she had attended the offices of the Petitioner on 17th July, 1972. Thereafter, in her statement of claim dated 22nd March, 1973, the Respondent stated that she had attended the offices of the Petitioner on 17th July, 1972 with a medical certificate. In other words, three different versions have been given by the Respondent with regard to the events of 17th july, 1972.
28. I would prefer to rely upon her letter dated 21st July, 1972 because that is the first document contemporaneous to the events of 17th July, 1972. In this letter, the Respondent did not make any mention of her visit to the offices of the Petitioner just a couple of days earlier, that is, on 17th July, 1972. The subsequent letters appear to be an improvement and an embellishment.
29. Moreover, the letters sent by the Respondent in the month of July, 1972 make it clear that she had absolutely no intention of rejoining the services of the Petitioner. In fact, she had made a categorical and strong statement to this effect in her letter dated 12th July, 1972 and had only asked for retrenchment allowance. Even in her letter of 21st July, 1972, the Respondent showed no interest in joining the services of the Petitioner and insisted on settlement of her accounts and further compensation. In this view of the matter, it is highly unlikely that the Respondent approached the Petitioner on 17th July, 1972 to rejoin her duties.
30. Furthermore, in her statement on oath as WW-2, the Respondent has not mentioned anything about her visit to the offices of the Petitioner on 17th July, 1972. This is rather extraordinary as she claims that she did actually go to the offices of the Petitioner on 17th July, 1972.
31. The Respondent took me through the evidence of the witnesses of the Petitioner and wanted me to infer from that evidence that she did in fact go to the offices of the Petitioner on 17th July, 1972. I am afraid it is not possible for me to draw any such inference from the statements of the Petitioner’s witnesses, particularly so when the Respondent herself did not state in her evidence that she had gone to the offices of the Petitioner on 17th July, 1972. Inferences cannot substitute facts which should be stated on oath.
32. It is on these facts that the Labour Court came to the conclusion that the Respondent did not go to the offices of the Petitioner to resume her duties on 17th July, 1972. For the reasons mentioned above, I find no infirmity in this finding arrived at by the Labour Court.
33. It may be worth noticing that the Respondent has not challenged this finding of the Labour Court either by way of a writ petition or through any other proceedings. Consequently, this finding has to be treated as final and accepted by all the parties concerned.
34. As regards the events of 4th September, 1972, the admitted position is that the Respondent came to the offices of the Petitioner on that day along with J.L. Khanna, Labour Inspector (and a representative of the Chief Inspector (Shops and Commercial Establishments). The question is whether she came for the purpose of rejoining duty or for getting her retrenchment allowance.
35. Of course, there is conflicting evidence in this regard. According to MW-1, B.N. Kapur, the Respondent came with J.L. Khanna and met K.L. Mehra. He denied that K.L. Mehra asked her to apply for fresh employment. This is, at best, heresay and cannot be given much credence.
36. According to K.L. Mehra who appeared as MW-2, the Respondent was told on that day to come with an application for condoning her absence, along with a medical certificate. He stated that he could not permit her to join duties unless the absence was condoned. He denied having told her to apply for fresh employment. This witness admitted that the name of the Respondent was on the rolls till September, 1972.
37. The Respondent appearing as WW-2 stated that she met K.L. Mehra who asked her to give an application for fresh employment.
38. In view of these conflicting statements by both the parties, who are naturally interested witnesses, the safest course of action is to rely upon the statement of J.L. Khanna who is a completely disinterested person and was the Labour Inspector. As per his testimony, he met K.L. Mehra and asked him to take back the Respondent on duty but he refused to do so. k.L. Mehra told him that if the Respondent again gives an application, then he will place it before his supervisors for orders. It appears that in the context of such an application, there was no dialogue of a fresh appointment of continuance in the existing appointment.
39. J.L. Khanna gave a report to the Chief Inspector, (Shops and Commercial Establishments) on the same day, that is, 4th September, 1972. In this report which is WW-1/1 he stated as follows:
“As per your instructions, I Along with the Workman Mrs. Nirmal Chawla went today i.e. 4.9.1972 to M/s K.G. Khosla & Co. Pvt. Ltd. to meet Shri K.L. Mehra, Manager-Administration, because Shri B.N. Kapur, Chief Executive, had not time to see me. Shri Mehra was told to take back Smt. Nirmal Chawla on service but Shri Mehra refused to take back Smt. Nirmal Chawla on service. He said that until Mrs. Nirmal Chawla did not make an application for service a second time, she will not be taken back on service. Mrs. Chawla was advised that she should refer her case for conciliation.”
40. In the light of the above facts it is quite clear that on 4th September, 1972 there was no talk between the parties with regard to retrenchment allowance. The only talk between them was with regard to the Respondent joining her work. K.L. Mehra was asked to take the Respondent back on duty by J.L. Khanna but he refused to do so. He only asked the Respondent to again give an application. It is not very clear whether this application was intended to be one for fresh employment (as alleged by the Respondent) or for continuing in the existing appointment (as alleged by the Petitioner). In his testimony, K.L. Mehra states that he wanted the Respondent to give an application for condoning her absence, along with a medical certificate. This implies that the requirement of an application was for her to continue in the existing appointment.
41. The name of the Respondent was on the rolls of the Petitioner till September, 1972. Given this position, the formality of the Respondent applying for leave of absence of producing a medical certificate justifying her absence could certainly have been taken care of on her rejoining her duties. If she had then failed to submit a proper application for leave duly supported by a medical certificate from a competent authority, disciplinary action could have been taken against her. In the circumstances, there was no reason for the Petitioner to refuse to take the Respondent on duty, in situ. She was, after all, its employee even at that time.
42. For these reasons, it is not possible for me to conclude that the finding given by the Labour Court in this regard can be faulted. I confirm the finding of the Labour Court which had already been extracted earlier.
43. In view of these findings it is not possible to hold that the Respondent had abandoned her duties. The only conclusion available is that she may not have wanted to join duty until 4th September, 1972 but on 4th September, 1972 she did make an attempt to join duty under the auspices of J.L. Khanna but was prevented from doing so. This was despite the fact that her name was on the rolls of the Petitioner till September, 1972. This cannot, by any stretch of imagination, be said to be abandonment of service by the Respondent.
44. It is pertinent to mention here that the Petitioner had applied for a stay of the impugned Award dated 26th September, 1975. However, by an order dated 12th February, 1976 a limited stay was granted only with regard to the deposit of money but there was no interim stay of reinstatement of the Respondent. Consequently, there was no reason why the Petitioner could not reinstate the Respondent. That the Petitioner has chosen not to reinstate the Respondent even until today clearly shows that the Petitioner is not interested in having the Respondent work with the Petitioner. Possibly, even in 1972 the Petitioner was not keen to have the Respondent rejoin her duty.
45. However, it must be stated in all fairness that during the course of hearing, learned counsel for the Petitioner submitted that in view of the strained relationship that was developed between the Petitioner and the Respondent, it will in any case be difficult to have her now work with the Petitioner. This appears to be correct inasmuch as the Respondent has filed several affidavits in which she has used rather harsh language regarding the conduct of the Petitioner. She has, on several occasions, accused the Petitioner of telling a lie or a blatant lie. It does appear that it may not be possible for the Petitioner and the Respondent to work together.
46. This also appeared to me to be so during the course of hearing. Consequently, I felt that even if I had to dismiss the writ petition, I would still be confronted with the question whether the Respondent should be reinstated in service or should be given compensation in lieu of reinstatement. A suggestion was, made to the parties to see if some out of Court settlement could be arrived at. The Petitioner was willing to offer to the Respondent a sum of Rs. 1.5 lakhs while the demand of the Respondent was about Rs. 25 lakhs. Given this tremendous disparity between the two figures, I found it futile to get the parties to settle their differences. Learned counsel for the Petitioner did state that he would be able to persuade his client to increase the offer but the Respondent did not show any visible interest in substantially scaling down her demand. Consequently, it could not have been possible to arrive at any figure to adequately compensate the Respondent to the satisfaction of both the parties.
47. In this regard, I must admit that the claim of the Respondent for Rs. 25 lakhs as compensation has been independently examined by me. I find the claim to be unreasonable and inflated. A few instances will suffice to demonstrate this. The Respondent has claimed interest on the alleged amount due to her at 18% per annum, while a learned Single Judge of this Court had determined the rate of interest to be 12% per annum. She has also claimed leave wages for 28 years on her alleged last drawn salary of Rs. 7400/- per month in March, 2000. Factually, her salary in 1979 (as claimed by her) would be only Rs. 650/- per month. She has also not accounted for her salary in the alternative place of work since 1st May, 1978. In other words, she wants salary for all these years from two different employers. This cannot be countenanced. I am sure that if the Respondent had been more fair and reasonable, the matter could have been amicably sorted out, and both parties spared further litigation. But, I suppose the Respondent knows what is best for her. All this is being mentioned so that in the event of an appeal, perhaps the collective wisdom of the Division Bench may result in better sense prevailing upon both the parties.
48. Under the circumstances, there is no option but to direct reinstatement of the Respondent with all consequential benefits including back wages and other admissible benefits. In terms of the order dated 12th February, 1976, the Respondent will be entitled to interest @ 12% per annum on the amount due to her. Needless to say, the amount earned by the Respondent in her current employment will require to be adjusted. This amount will not, however, carry any interest for the purpose of adjustment. The reason for this is that the Respondent was entitled to earn a livelihood by taking alternative employment. There is no reason why this right to earn a livelihood should have an adverse impact on the financial well being of the Respondent by saddling this amount with interest. The amounts already paid by the Petitioner to the Respondent will, however, be liable to adjustment with interest at 12% per annum thereon from the date of payment.
49. On the question of costs, the Respondents claims to have spent about Rs. 1 lakh in fighting her litigation. She has alleged that before the Labour Court, the Petitioner had taken a large number of unnecessary adjournments and that one reason or another, the Petitioner was unnecessarily delaying the disposal of the case. So far as I am concerned, while the matter was in my Court, no avoidable adjournments were taken by the Petitioner. Moreover, the Respondent has not given any account to show how she has arrived at this figure of Rs. 1 lakh to have been incurred by her towards litigation expenses.
50. I do however feel, on a perusal of the record that the Respondent has certainly incurred a lot of expenses on the litigation. Various affidavits, documents and judgments have been filed by the Respondent. All this must have certainly cost a considerable amount. In this context, it is worthwhile to mention that the Respondent cited about a hundred judgments (and supplied photocopies of most of them) on various aspect of industrial law. She also filed affidavits running into about 200 pages. All this was quite unnecessary and partly resulted in the delayed disposal of the case.
51. Be that as it may, it is quite difficult to assess how much the Respondent may have spent towards litigation expenses. I think the interest of justice will be served if the Respondent is awarded a sum of Rs. 1,000/- per year for all the 29 years that the dispute has been raging. Accordingly, the Respondent will be entitled to costs of Rs. 29,000/-. While this figure has been arrived at by a rule of thumb, in the absence of any memo of costs having been filed there is no other way to assess what costs should be awarded to the Respondent.
52. Finally, it must be added that learned counsel for the Petitioner submitted that this was a case which did not raise any question of law but only required an assessment of facts. However, since the Respondent cited a plethora of decisions, he too was compelled to cite several decisions. I have kept all these citations in mind and agree with learned counsel for the Petitioner that this case does not really raise any question of law, much less any complicated question of law. All that I have to examine under Article 226 of the Constitution is whether the Labour Court committed any perversity while dealing with questions of fact or seriously erred in the interpretation of the law. So far as questions of fact are concerned, I have already dealt with them for the purposes of determining whether or not the Labour Court appreciated the facts in a perverse manner. My answer to this is in the negative. So far as questions of law are concerned, none arose before the Labour Court or before me. Therefore, I do not think it, appropriate to deal with the various cases cited before me.
53. Consequently, CWP No. 23 of 1976 is required to be dismissed with costs as above and it is so ordered.