Tarkeshwar vs A.V. Engineering Industries Pvt. Ltd.

IN THE HIGH COURT OF DELHI AT NEW DELHI
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Judgment reserved on:24.07.2026
Judgment pronounced on:08.09.2026
Judgment uploaded on: 08.09.2026
# CNR No. DLHC010237192009
+ W.P.(C) 888/2009 & CM APPL. 23292/2024, CM APPL.
29046/2026
TARKESHWAR ..... Petitioner
versus
A.V. ENGINEERING INDUSTRIES PVT.
LTD. ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms. Urvi Mohan, Adv.
For the Respondent : Mr. Achin Goel, Adv.
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
J U D G M E N T
1. The present Writ Petition under Articles 226 and 227 of the
Constitution of India is filed assailing the Award dated 30.08.2008
passed by the Learned Presiding Officer, Labour Court-I,
Karkardooma Courts, Delhi in I.D. No. 284/2006, whereby the claim
Signature Not Verified
Signed By:HARMINDER
KAUR
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of the Petitioner/Workman, seeking reinstatement and back wages,
was dismissed.
2. Succinctly stated, the Petitioner joined the services of the
Respondent/Management on 01.08.1987, as a Spray Painter and
discharged his duties for nearly nineteen years. His last drawn
monthly wages were Rs. 3,931/-.
3. It is the case of the Petitioner that he had proceeded on
sanctioned leave with effect from 15.05.2006 till 03.06.2006 for
visiting his native village. During the said period, he allegedly fell ill
and was unable to resume duties on the scheduled date. However,
allegedly, he had informed the Respondent regarding his illness and
dispatched his medical certificate through Registered Post on
02.06.2006.
4. Thereafter, the Respondent issued a communication dated
15.06.2006 calling upon the Petitioner to report for duty.
Subsequently, his services were terminated on 26.06.2006.
5. Aggrieved by the refusal of employment and non-payment of
his dues, the Petitioner caused a demand notice dated 17.08.2006 to be
served upon the Respondent.
6. Since no relief was granted, the Petitioner instituted an
industrial dispute before the Learned Labour Court by filing a Claim
Petition.
7. The Respondent contested the claim by filing a Written
Statement wherein it denied the allegations of illegal termination and
pleaded that the Petitioner had voluntarily abandoned his employment.
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KAUR
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It was specifically asserted that the Petitioner failed to report for duty
despite being called upon to do so.
8. Upon completion of pleadings, the Learned Labour Court
framed the following issues, vide order dated 16.01.2017:
“(i)Whether the workman had abandoned the job of his
own?
(ii)Whether the services of the workman had been
terminated illegally and unjustifiably by the management?
(iii)Relief.”
9. Vide the impugned Award dated 30.08.2008, the Learned
Labour Court dismissed the Petitioner's claim, holding that the
Petitioner had not been able to prove that he had rejoined duty or had
approached the Management after his termination or had furnished
any fitness certificate as claimed, thereby implying that he had himself
abandoned his employment. It was further observed that since he had
himself abandoned his employment, the question of illegal termination
by the management does not arise. Consequently, he was held not
entitled to reinstatement or any consequential relief.
10. Aggrieved , the Petitioner has now approached this court.
11. The learned Counsel for the Petitioner submits that the learned
Labor Court has failed to consider that the Petitioner had remained in
continuous service of the Respondent since 01.08.1987 and had never
intended to sever the relationship of employment. It is argued that the
submitted that the Petitioner's absence from duty during the relevant
period was solely attributable to illness suffered while he was at his
native village and that the Respondent had been duly informed of his
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KAUR
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medical condition. Upon recovery he approached the Respondent with
the requisite fitness certificate and unequivocally expressed his
willingness to resume duties, but was unlawfully refused employment.
12. It is further submitted that the Respondent terminated his
services without issuing any notice, conducting any domestic enquiry,
or complying with the mandatory statutory safeguards governing
termination of service.
13. It is further submitted that the Learned Labour Court has
recorded findings unsupported by any evidence adduced by the
Management and has erroneously dismissed the Petitioner's claim by
treating the alleged abandonment of service as proved despite the
Respondent having failed to lead any oral or documentary evidence in
support of its defense.
14. Hence, it is urged that the impugned Award be set-aside and the
Petitioner be reinstated in service with continuity of service and
consequential benefits.
15. Per Contra , the learned Counsel for the Respondent has
submitted that the writ is meritless and is liable to be dismissed as all
the grounds have already been elaborately discussed in the impugned
judgment. Even otherwise, the Management and the Company has
closed down and the Director, Mr. Y. P. Khanna has also expired on
30.11.2012.
16. It is further urged that though Mr. Arun Khanna, son of Late
Y.P. Khanna has been impleaded as a party, the claim is in any case
not maintainable against him as the company does not exist anymore.
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KAUR
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17. Submission heard and the impugned order has been perused.
18. At the outset, it is apposite to note that the scope of interference
under Articles 226 and 227 of the Constitution of India against an
Award passed by the Labour Court is undoubtedly limited. This Court
does not sit as a Court of appeal over the findings returned by the
Labour Court and ordinarily would not re-appreciate the evidence
merely because another view is possible. However, where the findings
recorded are manifestly perverse, unsupported by the evidence on
record, or suffer from a patent misapplication of settled legal
principles, interference in exercise of supervisory jurisdiction would
be warranted.
19. The principal defence of the Respondent before the Learned
Labour Court was that the Petitioner had voluntarily abandoned his
employment and, therefore, there was no termination of service by the
Management. The Learned Labour Court accepted the said plea and
consequently held that the question of illegal termination did not arise.
20. A perusal of the impugned Award, however, reveals that the
said conclusion cannot be sustained. The Learned Labour Court has
proceeded on the premise that since the Petitioner failed to produce his
medical certificate, fitness certificate and the alleged reply to the
communication dated 15.06.2006, the plea of abandonment stood
established. Such an approach, in the opinion of this Court, is legally
unsustainable.
21. It is well settled that abandonment of service cannot readily be
inferred merely from absence from duty. Before such a conclusion is
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KAUR
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reached, the employer must establish, on the basis of cogent material,
that the employee intended to permanently sever the relationship of
employment. The burden to establish such abandonment squarely rests
upon the employer who raises the said plea.
22. In the present case, despite specifically pleading abandonment
of service, the Respondent admittedly chose not to lead any oral or
documentary evidence before the Learned Labour Court. No witness
entered the witness box on behalf of the Management. Consequently,
there was no evidence whatsoever to establish that the Petitioner had
voluntarily deserted his employment or that the Management had
treated his absence as voluntary abandonment in accordance with law.
23. The Learned Labour Court has, however, shifted the entire
burden upon the Petitioner and concluded that since he failed to
substantiate his explanation regarding illness and his alleged attempt
to rejoin duties, the plea of abandonment stood proved. A finding of
abandonment cannot rest solely upon the weakness of the employee's
case in the complete absence of evidence led by the employer in
support of its specific defence.
24. Another circumstance which weighs with this Court is that the
alleged absence itself was of a relatively short duration. The Petitioner
had proceeded on leave from 15.05.2006 to 03.06.2006 and, within a
matter of weeks, the Respondent treated him as having abandoned
service. Notice was issued on 15.06.2006, only 12 days after his leave
was over, and his services were terminated on 26.06.2006 without
holding any departmental enquiry or affording an opportunity to the
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KAUR
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Petitioner to defend its case. Subsequently, the Petitioner had also
issued demand notice in August. Abandonment of service cannot be
readily inferred from such a brief spell of absence, when the employer
has not discharged the burden of proving the same, particularly in the
case of a workman who had admittedly rendered nearly nineteen years
of continuous service with the establishment. In such circumstances, a
finding of voluntary abandonment could not have been returned in the
absence of clear and convincing evidence demonstrating an intention
on the part of the Petitioner to permanently forsake his employment.
25. In the considered opinion of this Court, the finding returned by
the Learned Labour Court on Issue No.1 is therefore based upon an
erroneous application of the burden of proof and is unsupported by
any evidence adduced by the Respondent. The same consequently
suffers from perversity and cannot be sustained.
26. Since wilful abandonment was not proved by the Management,
and the Petitioner was a direct employee of the Petitioner, the
Company ought to have followed the procedure as enumerated in
Section 25F of the Industrial Disputes Act, 1947 and could not have
terminated services without holding a proper enquiry and affording an
opportunity of being heard to the Petitioner.
27. Consequently, the impugned Award dated 30.08.2008 is liable
to be set aside.
28. Having arrived at the aforesaid conclusion, the question that
next arises is with regard to the appropriate relief to which the
Petitioner would be entitled.
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KAUR
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29. It is trite law that a finding of illegality in termination does not,
by itself, mandate reinstatement in every case. The Hon’ble Apex
Court has repeatedly held that reinstatement is not an automatic or
mechanical consequence of violation of Section 25F and that the relief
must be moulded having regard to the nature of employment, length of
service and the surrounding circumstances of the case.
30. In Assistant Engineer, Rajasthan Development Corporation
&Anr. v. GitamSingh : (2013) 5 SCC 136 and Bharat Sanchar
Nigam Limited (BSNL) v. Bhurumal : (2014) 7 SCC 177 , the
Hon’ble Apex Court has clarified that reinstatement is not an
automatic consequence of a procedural violation of Section 25F of the
Act, and that monetary compensation would ordinarily meet the ends
of justice. This principle finds definitive expression in Assistant
Engineer, Rajasthan Development Corpn. v. Gitam Singh (supra).
The relevant extract reads as under:
“22. From the long line of cases indicated above, it can be said
without any fear of contradiction that this Court has not held as
an absolute proposition that in cases of wrongful dismissal, the
dismissed employee is entitled to reinstatement in all situations.It
has always been the view of this Court that there could be
circumstance(s) in a case which may make it inexpedient to order
reinstatement. Therefore, the normal rule that dismissed
employee is entitled to reinstatement in cases of wrongful
dismissal has been held to be not without exception. Insofar as
wrongful termination of daily-rated workers is concerned, this
Court has laid down that consequential relief would depend on
host of factors, namely, manner and method of appointment, nature
of employment and length of service. Where the length of
engagement as daily wager has not been long, award of
reinstatement should not follow and rather compensation should
be directed to be paid. A distinction has been drawn between a
daily wager and an employee holding the regular post for the
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KAUR
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purposes of consequential relief.”
(emphasis supplied)
31. In BSNL v. Bhurumal (supra), the Court further explained the
rationale for this approach in the following terms:
“23. It is clear from the reading of the aforesaid judgments that
the ordinary principle of grant of reinstatement with full back
wages, when the termination is found to be illegal is not applied
mechanically in all cases. While that may be a position where
services of a regular/permanent workman are terminated illegally
and/or malafide and/or by way of victimization, unfair labour
practice etc. However, when it comes to the case of termination of
a daily wage worker and where the termination is found illegal
because of procedural defect, namely in violation of Section 25-F
of the Industrial Disputes Act, this Court is consistent in taking
the view in such cases reinstatement with back wages is not
automatic and instead the workman should be given monetary
compensation which will meet the ends of justice. Rationale for
shifting in this direction is obvious.”
(emphasis supplied)
32. In the present case, subsequent developments brought on record
during the pendency of the present proceedings disclose that the
Respondent/Company has since ceased to function and has been
permanently closed. The litigation itself has remained pending before
this Court for nearly two decades. In such circumstances, directing
reinstatement of the Petitioner at this stage would not be practicable.
33. Equally, this Court is not inclined to award back wages. Except
making a claim for reinstatement with consequential benefits, the
Petitioner has neither pleaded nor led any material to establish that he
remained continuously unemployed or was not gainfully employed
during the interregnum. In the absence of any evidence in this regard,
an award of back wages would not be justified.
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KAUR
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34. Having regard to the totality of the circumstances, this Court is
of the considered opinion that the ends of justice would be adequately
served by awarding lump-sum monetary compensation in lieu of
reinstatement and back wages.
35. Undisputedly, the workman had served for 19 years and
accordingly, in substitution of the relief of reinstatement and back
wages, the Petitioner is held entitled to lump-sum compensation of
₹4,00,000/- to be paid by the erstwhile employer within 8 weeks.
36. Now, this Court also deems it appropriate to deal with CM
APPL. 23292/2024 preferred by Mr. Arun Khanna, seeking deletion of
his name and address from the array of parties.
37. The principal contention of the Applicant is that he was never a
party before the Learned Labour Court, was never the employer of the
Petitioner, the Respondent/Company has since ceased to exist in 2007
(struck off from the ROC as well), his father Mr. Y.P. Khanna
(erstwhile Director) has also expired in 2011, he is neither the
successor in interest of the company/management, the private limited
company is a distinct legal entity, and therefore, he is neither a
necessary nor a proper party to the present proceedings.
38. Per contra , the Petitioner submits that the Applicant is
admittedly the son and one of the legal representatives of Late Shri
Y.P. Khanna, who admittedly represented the Respondent/Company
during the pendency of the present proceedings. It is further urged that
the Applicant has himself admitted having acquired rights in respect of
the property/asset from where the Respondent/Company admittedly
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KAUR
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carried on its business i.e. i.e., D-1, Okhla Industrial Area, Phase – 1
and, therefore, his presence is necessary to enable this Court to
effectively adjudicate the controversy.
39. Admittedly, Late Shri Y.P. Khanna represented the
Respondent/Company during the pendency of the present proceedings
and expired only thereafter. The employer-employee relationship
between the Respondent/Company and the Petitioner was never
disputed. Thus, when this Court has concluded that the termination
was unjustified, deletion of the Applicant from the proceedings at this
stage would not be appropriate, as he is admittedly the son and Legal
Representative of Late Shri Y. P. Khanna.
40. It is, however, clarified that this Court has not examined nor
expressed any opinion on the personal liability of the Applicant or any
other Legal Representative of Late Shri Y.P. Khanna to satisfy the
monetary compensation awarded herein. The present adjudication is
confined to determining the legality of the impugned Award and the
consequential relief to which the Petitioner is entitled.
41. The question as to against whom, and to what extent, the
monetary compensation awarded by this Court is enforceable,
including all objections relating to the liability of the
Respondent/Company, its legal representatives, successors, or any
person claiming through it, shall remain open to be urged and decided
in appropriate execution proceedings, if and when initiated, in
accordance with law. Nothing contained in the present judgment shall
be construed as a conclusive determination of such questions of
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Signed By:HARMINDER
KAUR
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personal liability, successor liability, and the extent of recoverable
assets.
42. Accordingly, the writ is disposed of along with the pending
application(s).
AMIT MAHAJAN, J
SEPTEMBER 8, 2026
‘KDK’
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Signed By:HARMINDER
KAUR
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