Delhi District Court
Carnatic Co. Ltd. vs . Venkatayya "(1963) 2 Llj on 24 February, 2010
# 1 #
IN THE COURT OF MS. RENU BHATNAGAR
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA, DELHI.
Ref. No. :F. 24 (3908)/91Lab/ 638385
Dated : 1992 ( not legible)
I.D. No. :2145/95
Between
The Management of
S. P. Engg. Products, (India),
575/1, Village Mundka,
Delhi 41
&
Its workmen :
(i)S/Sh. Chander Sain,
(ii)Sh. Vashisht,
(iii)Sh. Ajit Singh
(iv)Sh. Chandrama Singh
(v)Sh. Ram Lakhan
C/o Delhi General Udyog Karamchari
Sangh,
T 78, Milan Market, Karampura,
Shivaji Marg, New Delhi15
Date of Institution of the case : 18.09.1992
Date on which reserved for Award :29.01.2010
# 2 #
Date on which Award is passed : 24.02.2010
A W A R D
The workman Sh. Chander Sain, Sh.
Vashishth, Sh. Ajit Singh, Sh. Chandrama Singh,
Ram Lakhan raised an industrial dispute
regarding the termination of their services by the
management of M/s S.P. Engg. Products. The
appropriate Govt. on being satisfied regarding the
existence of industrial dispute between the parties,
made a reference for adjudication. The said
reference is as under :
"Whether the services of
S/Sh. Chander Sain,
# 3 #
Vashisht, Ajit Singh,
chanderma Singh and Ram
Lakhan have been
terminated illegally and/ or
unjustifiably by the
management if so to what
relief are they entitled and
what directions are
necessary in this respect?"
Thereafter, statement of claim was filed
by the workman. Out of 5 workmen only two
workmen Chandrama Singh, Vashishth have filed
statement of claim in the Court. It is stated in the
statement of claim filed by these two workmen,
# 4 #
namely, Chandrama Singh & Vashisth that they
were working as shaperman and helper w.e.f
05.10.1987 and 12.04.1986 and on the salary of Rs.
1104/ and Rs. 854/ per month respectively; that
the management was not providing legal facilities
to the workmen due to which all the workmen
formed Union and became member of the Union,
namely, Delhi General Udhyog Karamchari Sangh;
that workmen made a complaint through Union on
11.3.1991 demanding legal facilities due to which
the management got annoyed and terminated them
w.e.f 12.03.1991; that the management and its
men picked up a quarrel with the workmen on
11.03.1991 of which the workmen made a
complaint to the local police but of no avail; that
# 5 #
the management had terminated the workmen
without any notice, charge sheet and without
holding the enquiry and without payment of any
retrenchment compensation etc; that,
thereafter,the workmen had sent demand notice on
08.04.1991 to the management but of no avail; that
the workmen are unemployed since the date of
their termination, hence, they have claimed
reinstatement along with back wages and
continuity of service.
Notice of the filing of statement of claim
was sent to the management who had appeared in
the Court and contested the claim of the workman
and filed written statement on its behalf. In the
written statement filed by the management it has
# 6 #
taken the preliminary objections that the workmen
have not reported for their duties of their own w.e.f
22.04.91 or thereafter, without any intimation or
prior sanction of leave and that despite repeated
advices sent to them they have failed to report for
duties; that the management reiterates its offer to
Chandrama Singh and Vashishth to report back to
duties if they want to, leaving the question of back
wages to be decided by the Court; that on
consideration of the demand notice dated
08.04.1991, the management has taken a
sympathic view and revoked the termination vide
letter dated 15.04.1991 and recalled them to
resume the duties w.e.f 22.04.1991 but both of
them have failed to resume their duties. On merits
# 7 #
it is stated that the date of joining of Sh.
Chandrama Singh is 1.08.1988 and of Vashishth is
06.09.1988; that their took place a scuffle between
the some of employees in which the concerned
workmen were jailed bringing bad name to the
management. It is denied that the management
was not providing legal facilities; that the
management was never informed by the workmen
about their joining any union. It is denied that the
management got irritated or terminated the
workmen or has implicated the workmen in any
criminal case. It is also denied that the
management or any of its person has ever picked
up quarrel with the workmen on 11.03.1991 as
alleged; that in fact some employees had entered
# 8 #
into his scuffle in the premises of the establishment
of the management and the police had to intervene
and both the sides were placed behind the bars and
that the two sides were placed under suspension
vide letter dated 12.03.1991 and, thereafter,
finding that their explanation not satisfactory,
they were removed vide letter dated 03.04.1991,
thereafter, the workmen raised the demand notice
on 08.04.1991, the demand was sympathically
considered, the removal order was revoked and
they were advised to report for duties w.e.f
22.04.1991 but they failed to do so. All other
allegations are denied. Hence, it is prayed that
the statement of claim be dismissed.
In rejoinder to the written statement of
# 9 #
the management all the averments of the
statement of claim are reaffirmed and that of
written statement are denied by the workman.
On the pleadings of the parties, vide order
dt. 22.04.1998, the following issues were framed by
the then Presiding Officer:
1.As per terms of reference.
However, again due to inadvertence, the Predecessor Court framed fresh issues on 21.10.1998 which are as follows:
1. Whether workmen abandoned the job w.e.f 22.04.1999?
2. as per the terms of reference?
No other issue arose or pressed and the case was adjourned for evidence on behalf of the # 10 # workman.
In support of his case, the workman Chandrama Singh has appeared as WW 1 and filed the affidavit and substantiated all the averments of the statement of claim in his affidavit Ex. WW1/A. He has tendered in evidence the document Ex. WW1/A to WW1/H Workman Vashishth has appeared as WW2 and filed the affidavit and substantiated all the averments of the statement of claim in his affidavit Ex. WW2/A. He has tendered in evidence the document Ex. WW2/1 to WW2/6. After examining both the workmen, the evidence of workmen was closed.
In support of their defence, the # 11 # management has examined MW 1 Sh. Sukhvinder Singh partner of the management who has tendered his evidence by way of affidavit Ex. MW1/A. Sh. Omprakash, Manager, has appeared as MW2, who has tendered his evidence by way of affidavit MW2/A and tendered in evidence the carbon copy of the letter dated 15.04.1991 issued by the management to the workman.
Sh. B. N. Trivedi has appeared as MW3 who has deposed that he was working as Account Assistant with M/s Ventura Brass since 1997 and that the workman Chandrama Singh was working with M/s Ventura Bras from 1/03/2001 to 1/01/2005 and had left the management after taking his full # 12 # and final settlement, that he again joined on 02.06.2008, worked till 1517th July, 2008 and left without intimation. He has produced in evidence the extracts of the salary register Ex. MW3/1, copies of ESI and PF declaration and nomination form Ex. MW3/2.
Sh. Dharmender MW2/4 has appeared from EPF Department, Haryana who has produced Form No9 containing PF settlement of the workman Chandrama Singh from M/s Ventura Bras and exhibit the said document as Ex. MW4/A. He has tendered in evidence copy of the contribution made by M/s Ventura Bras Ex. MW4/V and audit sheet Ex. MW4/C. After examining MW 4, no further # 13 # evidence was produced by the management despite taking several adjournments and as such vide orders dated 7.12.2009 management evidence was closed.
I have heard the arguments as advanced by the ARs for both the parties and have perused the file. Due to inadvertence the issues in this case are framed two times by predecessor Court but as the issue which was framed on 22.04.1998 has been included in the issues framed on 21.10.1998, I shall decide the issues as framed on 21.10.1998.
My findings on the issues as framed on 21.10.1998 are as under : # 14 # Issue No. 1 :
The onus to prove this issue is upon the management. As per the case of both workmen Vashishth and Chandrama Singh they were working since 1986 1987 with the management and due to demand of legal facilities the management had terminated them on 12.03.1991 after implicating them in a false and frivolous case on the ground of some quarrel in the management premises on 11.03.1991, that as per the case of the management, both these workmen along with other workmen of the establishment of the management had picked up a quarrel on 11.03.1991 due to which police had to intervene in the matter, both the # 15 # parties were arrested whereafter these two workmen along with other were placed under suspension vide letter dated 12.03.1991 and, thereafter, finding their explanation not satisfactory they were removed from service on 3.04.1991. However, later on the workmen raised a demand for reinstatement through their demand notice dated 08.04.1991, and their demands were sympathetically considered and vide letter 15.04.1991 management had revoked their termination and advised them to report for duties w.e.f from 22.04.1991, but they failed to resume their duties and had abandoned the job.
In the present case, the relationship between the parties is admitted. It is also not in # 16 # dispute that both these workmen Chandrama Singha and Vashishth were suspended by the management on 12.03.1991, and thereafter, terminated on 03.04.1991. Now, the question arises whether the management had later on revoked the termination order dated 03.04.1991 and directed the workmen to report for duties w.e.f 22.04.1991 vide their letter dated 15.04.1991. The said letter dated 15.04.1991 has not been produced by the management in original in the Court and only a carbon copy of the same is produced by MW2 in his evidence for the first time in his evidence. However, no postal/ UPC receipt of the said letter is placed on record by MW2 nor any record of the receipt or dispatch of the said letter Ex. MW1/1 is # 17 # produced by the management. As per the statement of MW2, the said letter of 15.04.1991 whereby the termination order was revoked by the management, was sent through post to the workers concerned. However, both the workmen have denied receiving of any such letter. In the absence of production of any postal receipt or its receiving by the workmen, it is held that the management has failed to prove that they had in fact dispatched any such letter on 15.04.1991 as alleged by management. Further, there is cutting in the date of this letter which also creates suspicion with regard to the authenticity of this document and for which it was necessary for the management to produce the original in the Court. Accordingly, # 18 # management has failed to prove that they had sent any letter on 15.04.1991 thereby calling upon workmen to resume their duties w.e.f 22.04.1991, and as such the defence of the management that the workmen have themselves not reported for duties w.e.f 22.04.1991, after receiving the letter on 15.04.1991 whereby the earlier termination order was revoked by the management, is without any substance.
The law on abandonment is very clear. Abandonment of duties depends upon the intention of the workmen to be gathered form surrounding circumstances. It is held by the Hon'ble Delhi High Court in "2004 LLR 1094" as under:
"Abandonment of workman # 19 # from his employment depends upon his intention."
Similarly it is held in Buckingham & Carnatic Co. Ltd. Vs. Venkatayya "(1963) 2 LLJ 638" by the Hon'ble Supreme Court as under :
"Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
# 20 # In GT Lad Vs. Chemicals and Fibres of India "(1979) Lab IC 290" it is held by the Hon'ble Supreme Court as under :
"However, the "intention may be inferred from the acts and conduct of the party'. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case. It was further held that a # 21 # temporary absence from duty cannot be treated as abandonment, but it must be a permanent break intended by the workman."
In Dr. (Mrs.) Daksha Sankhla Vs. Jai Narain Vyas University Jodhpur and others, "2001 LLR 1071" by the Hon'ble Supreme Court as under
:
"There is distinction between retrenchment and abandonment from service. The termination contemplates an # 22 # act on the part of the employer which puts an end to service to fall within the definition of the expression retrenchment and in case the workman does not report for duty, it would amount to abandonment of services by the employee of his free will and the employer would have done nothing, whatsoever, to put an end to his employment and, therefore, the case does not fall within the meaning of retrenchment."
# 23 # Hence, from the facts it should be reflected that the workmen had any intention to sever their relationship with the management permanently. In this case, admittedly, the workmen were removed from services w.e.f 03.04.1991. The said order of removal is placed on record by the workmen as Ex. WW1/E. Perusal of the said order reveals that the said order of removal is penal in nature. After this order of 3rd April, 1991 the workmen had sent the demand notice on 08.04.1991 that is immediately after their termination. The said demand notice was admittedly received by the management and they say that in response thereto they have called back the workmen again for duties. The said averment # 24 # of management is not proved on record by production of the letter of 15.04.1991 as discussed by me above. Hence, it is clear that despite the receiving of the demand notice dated 08.04.1991, the management had not taken back the workmen on duty. As admitted by MW2 in his cross examination that the Labour Inspector had visited the management and directed the management to take back the workmen on duty. Hence, it is also clear from his statement that even during conciliation the management was directed to take back the workmen on duty.
It is argued by Ld. AR for the management that the workmen had not reported for duties of their own since even during the # 25 # proceedings of this case they were directed to report for duties but they failed to do so. So far as this argument of Ld. AR for the management goes, it is pertinent to mention that in this regard there are allegations and counter allegations from both the sides one alleging that they were not allowed to resume their duties and the other contradicting the same stating that the workmen had not joined the duties despite directions but as per the record, it is clear that the workmen had approached the Labour Department immediately after their termination and had sent a demand notice immediately after their removal and as such it cannot be inferred by any stretch of imagination that the workmen had any intention to abandon their services or to # 26 # permanently sever their employment.
Accordingly, from the above discussion it is held that the management has failed to prove that the workmen have abandoned their services, Hence, this issue is decided against the management and in favour of the workmen. Issue No. 2 :
As per the case of the workmen they were removed by the management illegally without conducting any domestic enquiry and without issuing any chargesheet etc. The defence of the management that the workmen have abandoned their duties has already been disbelieved by me in my findings on issue no1. It is admitted case of # 27 # both the parties that no domestic enquiry was conducted by the management before issuing the said removal order of 3rd April, 1991. No charge sheet was given to the workmen. The said fact is admitted by MW1 in his cross examination. Perusal of the order of removal Ex. WW1/E shows that it was a penal discharge of the workmen for which it was necessary for the management to conduct an enquiry and without conducting the enquiry the said order is bad in law. I am supported in my view by iota of judgment on this point. Reference can be had to the case titled as MCD Vs. Praveen Kumar Jain and Others reported as 1998 SCC (L&S) 1222.
Accordingly, from above discussion, it is # 28 # proved that the management has illegally terminated the workmen and they are entitled to be reinstated.
On the point of back wages, the management has produced two witnesses MW3, MW4 to prove again full employment of one of the workman Sh. Chandrama Singh. MW3 is an official from Ventura Bras who had deposed that the workman Chandrama Singh who was present in the Court, was working in M/s Ventura Bras from 1st March, 2001 to 1st September, 2005 and, thereafter, from 2nd June, 2008 till 1517 July , 2008 i.e. for about one and half months. However, this witness has produced the extracts from salary register. The management has also produced an # 29 # official from EPF Department Sh. Dharmender as MW4 who has produced the PF settlement record of Chandrama Singh and has stated that Sh. Chandrama Singh has worked with M/s Ventura Brass from 1st March, 2001 to 1st September, 2005 as per their record.
Though the salary record as produced by MW3 was never put to workman Chandrama Singh to admit or deny his signatures on the said document, however, during the cross examination of both these witnesses no suggestion is put to the witnesses that these documents are not related to the workman Chandrama Singh nor their authenticity was disputed by the workman. Accordingly, so far as the back wages are # 30 # concerned, in my considered opinion workman Chandrama Singh is not entitled for the back wages for the period from 1.03.2001 to 1st September, 2005 and from 2nd June, 2008 till 17th July, 2008. For rest of the period, the workman is entitled to 50 per cent back wages, seeing the facts and circumstances of the pendency of the case and also taking into consideration that the workman had in fact not served the management during this period. Accordingly, workman Chandrama Singh is granted reinstatement with 50 per cent back wages except for the period from 01.03.08 to 01.09.2005 and 2.06.08 to 17.07.08.
So far as other workman Vashishth is concerned, in his cross examination has deposed # 31 # that he is working with M/s Nirman Overseas as daily wager for the last two years. This statement was made on 18.05.2001, hence, it is clear that since two years prior to 18.05.2001 the workman Vashishth was working with M/s Nirmaan Overseas, hence, in view of this statement of the workman, in my considered opinion, instead of reinstatement, the ends of justice would be met if workman Vashishth is granted compensation Accordingly, in view of the above discussion workman Vashishth is granted compensation of Rs. 75,000/.
# 32 # Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the Six copies of this Award to the appropriate Govt.
The file be consigned to record room. Announced in open Court on 24.02.2010.
(Renu Bhatnagar) Presiding Officer Labour CourtX Karkardooma Courts, Delhi