Delhi District Court
Sh. Har Narayan Sharma vs M/S L.G. Electronics India Ltd on 29 April, 2008
1
IN THE COURT OF SHRI GIRISH KATHPALIA;
PRESIDING OFFICER, LABOUR COURT XIX
KARKARDOOMA COURTS:DELHI.
LIR. NO. 586/06
SH. HAR NARAYAN SHARMA,
S/O SH. HARI RAM SHARMA,
C/O ALL INDIA GENERAL
MAZDOOR TRADE UNION,
170, BALMUKUND KHAND,
GIRI NAGAR, KALKAJI,
NEW DELHI-19. ........WORKMAN
VS
M/s L.G. ELECTRONICS INDIA LTD.,
221, OKHLA ESTATE,
PHASE-III,
NEW DELHI-20. ......MANAGEMENT
Date of reference:05/03/02
Date of taking up the matter for the first time:11/01/08
Date of conclusion of arguments:19/04/08
Date of award:29/04/08
Ref no. F.24(3770)/2001.Lab./3204-8 dated 05/03/02
AWARD
1. On being satisfied as regards existence of an
industrial dispute between the parties, the Secretary(Labour)
Government of NCT of Delhi in exercise of powers conferred by
section 10(1)(c) and section 12(5) of the Industrial Disputes Act
referred the present dispute to the Labour Court IX for
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LIR NO. 586/06 Page 1 of 33 pages
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adjudication, from where it was transferred to this court with
the following terms of reference:
"Whether Sh. Har Narayan Sharma, s/o Sh.
Hari Ram Sharma who was working as Sr.
Manager(HRD) is covered under the definition
of workman as laid down in section 2(s) of the
Industrial Disputes Act 1947 and if so, whether
his services have been terminated illegally
and/or unjustifiably by the management and if
so, to what sum of money as monetary relief
along with consequential benefits in terms of
law/government notification and what other
relief is he entitled and what directions are
necessary in this respect?"
2. Upon service of court notice, the workman filed a
statement of claim and sought reinstatement of his services
with continuity and back wages. As pleaded by workman, he
had been working with the management since 01/01/97 as Sr.
Officer(HRD) and his last drawn monthly salary was
Rs.11,655/-. When the workman demanded statutory benefits,
the management got annoyed and after withholding his salary
of 01/01/01 and 02/01/01, terminated his services on
03/01/01 in violation of section 25F of the Industrial Disputes
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Act. Despite service of demand notice dated 03/01/01 and
intervention of labour authorities, the management did not
reinstate services of the workman. Hence this reference.
3. Management in the written statement took a
preliminary objection that since the workman was neither
working in Delhi nor his services were dispensed with in Delhi,
this court lacks territorial jurisdiction to entertain this case.
Management pleaded that at all material time, the workman
was working in Greater Noida, UP. Another preliminary
objection taken by the management was that the workman
does not fall within the definition of "workman" under section
2(s) of the Industrial Disputes Act. On merits, it was pleaded
by the management that the workman himself voluntarily
deserted his contractual employment with the management.
Management further pleaded that the workman sexually
harassed a girl who had come for employment in the
establishment of management. The workman was also involved
in manipulating the attendance records and he confessed
about the same. Apprehending departmental action, the
workman deserted his employment with effect from
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16/12/2000.
4. Workman filed a rejoinder, denying the pleadings of the
management and reaffirmed the claim contents.
5. On the basis of pleadings, my ld predecessor framed
the following issues.
1. Whether this court has territorial
jurisdiction to entertain and try the present
case in view of preliminary objection no. A of
WS?
2. Whether the claimant Sh. Har Narayan
Sharma is covered within the definition of
workman as per section 2(s) of ID Act, 1947?
3. Whether the claimant Sh. Har Narayan
Sharma has himself abandoned the job of his
own?
4. Relief.
6. In support of his case, workman appeared in the box as
his solitary witness while three witnesses were examined on
behalf of management.
7. In his chief examination, the workman deposed on oath
the above mentioned contents of his pleadings and placed on
record the relevant documents as Ex.WW1/1 to Ex.WW1/9.
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Ex.WW1/1 is complaint dated 03/01/01 lodged with the
Assistant Labour Commissioner by the union on behalf of the
workman. Ex.WW1/2 is the demand notice dated 03/01/01
which was sent vide postal receipts Ex.WW1/3&4. Ex.WW1/5
is the claim statement before Conciliation Officer. Ex.WW1/6
is a copy of notice of conciliation proceedings. Ex.WW1/7 is
management's letter dated 29/07/97 giving designation and
duties of the workman. Ex.WW1/8 is the identity card of the
workman. Ex.WW1/9 is form 16 under the Income Tax Act.
8. In his cross examination, the workman stated that his
permanent address is of Faridabad. He admitted that one of
the factories of management is at Plot no. 51, Udyog Vihar,
Greater Noida, UP but denied that at the time of dispensation
of services he was working at the said factory in Greater Noida.
At the time when his services were terminated, as per
workman, he was working as a Sr. Officer (HRD) under Vice
President, HRD. He used to supply material to six
housekeepers working in the office. He did not know as to
which officer of the management got annoyed when he
demanded statutory benefits, as mentioned in his claim. He
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admitted having not brought on record any document of PF or
ESI related to him. In his cross examination, the workman
further stated that presently he is employed as Consultant
with two companies since 01/08/05 and his job involves
marking attendance of employees and preparing PF & ESI
records. He admitted that documents Ex.WW1/MXA to
Ex.WW1/MXE bear his signatures. He admitted that column 8
of Ex.WW1/MXA filled up in his own handwriting mentions his
designation as "Head HR" and that he worked with LG
Electronics from 01/07/96 to 06/03/04 as Head P&A at a
salary of Rs.4,00,000/-(apparently per annum). Initially, the
workman refused to respond to a specific question in cross
examination as to whether he had been sent to Korea for
training, but when my ld predecessor directed, the workman
admitted that he had been sent for technical training to Korea.
He also admitted that Ex.WW1/MXD bears his signatures and
he had filed the income tax returns on behalf of the
management. He stated that his educational qualification is
only till 12th standard and he does not hold any MBA degree or
post graduate diploma in management from Delhi University
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or Agra University. Workman admitted that his visiting card
Ex.WW1/MXE shows him as "Head of Cooperate-HR".
9. MW1 is the security officer of management, posted
at their Greater Noida factory for past about 8 years and his
job is issuance of visitors pass at the security check post on
main gate of the factory. As per MW1, the visitors to the
factory deposit back the pass with him after having met the
concerned officials in the factory. MW1 stated that during
1998-2000 the workman was working as senior officer HR and
used to recruit workers. On 20/11/2000 a lady named Sukla
Banik requested for permission to go inside, which was
allowed by MW1 after taking permission from the workman.
On return after meeting the workman, the said lady
surrendered her visitor pass. This witness placed on record as
Ex.MW1/1 a copy of visitor pass issued to Sukla Banik. In his
cross examination, MW1 stated that he had no knowledge
about the working conditions of workers of the factory. As per
MW1, he knew that the workman was working in the factory
as a senior officer of the company. Beyond that, MW1 has no
other knowledge as regards this case.
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10. MW2 is the Deputy General Manager (HR & MS) of
the management at their Greater Noida factory and has been
reporting to the Director (HR & MS). MW2 deposed that the
workman was employed in their factory as Senior Officer(HR)
and was entrusted with recruitment of workers, organizing
employees health camp, welfare programmes, supervising the
house keeping and liasoning with the government authorities.
MW2 further stated that the management had revised the
workman's salary package vide orders Ex.MW2/1&2. In his
cross examination, MW2 stated that initially the workman was
appointed in Delhi to take care of appointment and working
conditions of the workers since their factory at Greater Noida
was under construction. After completion of construction, as
per MW2 the workman was transferred to Greater Noida,
though without any transfer letter. He admitted that letter
Ex.MW2/1 mentions address of the management at New Delhi
but explained that the letter was delivered to the workman at
Noida from registered office at Delhi, as reflected from address
of the workman mentioned in that letter. He stated that the
management had written letters to the workman calling upon
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the latter to report back for duties but admittedly no such
letter has been filed by the management.
11. MW3 is the Head HR of IBM, Gurgaon and was
employed with the management at their Greater Noida Factory
from 29/06/98 to 25/06/01. He deposed that in the year
1998, when the management factory started its manufacturing
activity, the workman and other employees of the management
were shifted from Delhi office of the factory. MW3 was overall
incharge of the Greater Noida factory and the workman
working under him used to look after investigation of
antecedents of workers employed on casual or regular basis,
factory administration, compliance of various labour laws and
house keeping etc. He stated that the self appraisal forms used
to be filled by individual officers and the same was done by the
workman also who was posted in supervisory capacity. As per
MW3, the establishment of the management was also
registered under the PF Act. In his cross examination MW3
stated that he did not receive any summons from this court
and had been informed about the present case by
representative of the management. He stated that the
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workman was being extended benefit of ESI and volunteered
that the same was discontinued after the workman was
transferred to Greater Noida, which is exempted from ESI Act.
12. No other evidence was adduced.
13. I have heard ld authorized representative for both
the sides and perused the record. My issue wise findings are
as under.
ISSUE NO. 1
14. In order to show territorial jurisdiction of this court
to entertain this case, ld authorized representative for
workman placed reliance on letter Ex.WW1/7 issued by the
management to the workman on 29/07/97 whereby he had
been redesignated as Sr. Officer (HRD) at Delhi with effect
from 01/07/97. The said letter was issued from Delhi office of
the management to the workman at his residence in Delhi.
Reliance was also placed on identity card Ex.WW1/9 and form
16 Income Tax Act Ex.WW1/10. It was argued that since the
workman was appointed in Delhi and he worked in Delhi, this
court has territorial jurisdiction to entertain this case.
15. Ld authorized representative for management
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places reliance on certain case law and documents proved by
workman himself which show that the workman was
transferred to Noida where he worked and he left his services
from Noida only. As per management, since cause of action
arose in Noida, the dispute falls beyond the territorial
jurisdiction of this court.
16. In the case of G.S. BATRA vs R.N. MEHROTRA,
2004 LLR 445, under challenge before Hon'ble Delhi High
Court was a view taken by the labour court to the effect that
since the workman had been appointed initially at Madras,
was under administrative control of head office at Bangalore
and final orders regarding transfer etc could be done by head
office at Bangalore only, merely because the workman worked
in Delhi and his services were terminated here would not give
territorial jurisdiction to the Delhi Administration for making
the reference. Hon'ble Delhi High Court set aside the view
taken by the labour court, holding that the management's
office being in Delhi, the workman having been employed in
Delhi and services of the workman having been terminated in
Delhi, cause of action arose in Delhi, consequently the Delhi
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Administration had jurisdiction to make reference.
17. In the case of HINDUSTAN LEVER LTD vs
INDUSTRIAL TRIBUNAL 1, DELHI, WP(C) 1957 of 1989,
decided by Hon'ble Mr. Justice Madan B. Lokur, Hon'ble Delhi
High Court discussed various judicial precedents on the
aspect of territorial jurisdiction and held thus:
"21. Applying the principles laid down in
these various decisions, the questions
that need to be asked are: what is the
dispute between the parties; where did the
dispute substantially arise; and, is there
any nexus between the dispute and the
territorial jurisdiction of the industrial
adjudicator. After answering these
questions, one has to keep at the back of
the mind the accepted test of jurisdiction
of a civil court including residence of the
parties.
22. The dispute between the parties in the
present case is about the validity of an
order terminating the services of the
respondent who was working in Delhi. The
dispute substantially arose in Delhi where _____________________________________________________________ LIR NO. 586/06 Page 12 of 33 pages 13 the respondent was working and from where the order of termination was issued. This being the factual position, there is a territorial nexus between the dispute and the industrial adjudicator (the Learned Tribunal) situated in Delhi."
18. On being challenged, the judgment in the case of HINDUSTAN LEVER(supra) was upheld by a division bench comprising of Hon'ble Dr. Justice Mukundakam Sharma, CJ(as his lordship then was) and Hon'ble Mr. Justice Sanjeev Khanna in R.P. BIDANI vs HINDUSTAN LEVER, LPA NO. 1091 of 2004 decided on 07/05/07. Hon'ble Division Bench of the Delhi High Court, after analyzing various judicial pronouncements held that the forum located at the place of termination of services would patently have jurisdiction besides situs of employment of workman and the tests of jurisdiction as applicable to civil courts on the concept of cause of action.
19. Falling back to the present case, as mentioned above, workman admits having executed the documents _____________________________________________________________ LIR NO. 586/06 Page 13 of 33 pages 14 Ex.WW1/MXA to Ex.WW1/MXE. Ex.WW1/MXB and Ex.WW1/MXC are copies of the curriculum vitae of the workman duly signed by him. Ex.WW1/MXB reflects that the workman had a working experience as Head-P&A with LG Electronics India Ltd, Greater Noida, UP from 01/07/96 to 06/03/04, which period covers the date of alleged termination of services of the workman. In other words, as per workman himself, at the alleged time of termination of his services on 03/01/01 he was working at Greater Noida.
20. As reflected from clause 4 of letter Ex.WW1/7, service of the workman was transferable anywhere in India. MW1, the security officer of the management's factory at Greater Noida specifically deposed that the workman was posted in Noida and on 20/11/2000 MW1 issued visitors pass Ex.MW1/1 to a lady who wanted to meet the workman in connection with her employment application Ex.MW1/2. Although MW1 was cross examined substantially, his testimony remained unshaken.
21. MW2 is the Deputy General Manager, to whom the workman used to report at their factory in Greater Noida. He placed on record letters Ex.MW1/1&2, genuineness whereof _____________________________________________________________ LIR NO. 586/06 Page 14 of 33 pages 15 was not challenged in cross examination and both these letters reflect the workman as Sr. Officer, HRD at factory of the management at Greater Noida. This witness also explained in cross examination that since factory of the management was under construction, the workman was initially appointed at Delhi and then transferred to Noida.
22. MW3, who was incharge of HR department for Greater Noida factory of the management also deposed that the workman was working at Greater Noida only. This witness also was cross examined at length but his testimony remains unshaken.
23. On his part, the workman did not adduce any documentary or even oral evidence to the effect that as on 03/01/01 he was working in Delhi office of the management.
24. It is amply established from workman's own documents that at the time of alleged termination of his services, the workman was working in Greater Noida factory of the management and the cause of action that is termination of services of the workman arose in Greater Noida. That being the factual position, the territorial nexus exists between the _____________________________________________________________ LIR NO. 586/06 Page 15 of 33 pages 16 dispute and the industrial adjudicators of Greater Noida and not of Delhi.
25. In view of above discussion, issue no. 1 is decided against the workman and it is held not proved that this court has territorial jurisdiction to try this case. ISSUE NO. 2
26. On behalf of workman, the only argument raised on the issue under consideration was that since the letter Ex.WW1/7 does not lay down the job profile of the workman and the workman stated in his testimony that his educational qualification is only 12th standard, he has to be presumed to be a workman within the definition under section 2(s) of the Industrial Disputes Act.
27. Per contra, ld authorized representative for management took me through entire documentary record including workman's own documents to show that the workman does not fall within the definition under section 2(s) of the Industrial Disputes Act.
28. There is plethora of judicial pronouncement on the factors to be looked into for deciding as to whether or not a _____________________________________________________________ LIR NO. 586/06 Page 16 of 33 pages 17 claimant before the court is a workman within the meaning of section 2(s) of the Act. It is trite position of law that mere designation of the claimant is not to be taken as decisive test; what is to be seen is the nature of work being discharged by the claimant.
29. In the case of STATE BANK OF BIKANER & JAIPUR vs HARIHAR NATH, AIR 1971 SC 2200 Hon'ble Supreme Court held that the grant of power of attorney is a very important circumstance showing that the employee is discharging the functions of a supervisory nature.
30. In the case of PIARE LAL ANAND vs STATE BANK OF INDIA, 1973 LAB. I.C 761, Hon'ble Delhi High Court held that holding of power of attorney on behalf of management by the workman is one of the very important circumstances in holding that the claimant is not a workman.
31. In the case of HUSSAN MITHU MHASVHADKAR vs BOMBAY IRON & STEEL LABOUR BOARD, (2001) 7 SCC 394 Hon'ble Supreme Court held as under:
"No doubt, in deciding about the status of an employee, his designation alone cannot _____________________________________________________________ LIR NO. 586/06 Page 17 of 33 pages 18 be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. Even if the whole undertaking be an industry, those who are not workmen by definition may not be benefited by the said status. It is the predominant nature of the services that will be the true and proper test. Operations of the Government which are pure and simplicitor administrative and of a governmental character or incidental thereto cannot be characterized to be "industrial" in nature, be they performed by a department of the government or by a specially constituted statutory body to whom anyone or more of such functions are delegated or entrusted with. When, as in this case, as disclosed from Section 15 of the Act as also the provisions of the Scheme, the primary duties of an employee and the dominant purpose, aim and object of employment was to carry out only certain specific statutory duties in the matter of effective enforcement and implementation of the _____________________________________________________________ LIR NO. 586/06 Page 18 of 33 pages 19 Welfare Scheme in order to ameliorate and rehabilitate a particular cross section of labour, and, if need be, on the basis of his own decision which calls for a high degree of discretion and exercise of power to prosecute the violator of the provisions of the Act, Rules and the provisions of the Scheme, we are unable to accord our approval to the claim made on behalf of the appellant that he can yet be assigned the status of a "workman", without doing violence to the language of Section 2(s) and the very purpose and object of the ID Act, 1947. That apart, even judging from the nature of powers and the manner of its exercise by an Inspector, appointed under the Act, in our view, the appellant cannot be considered to be engaged in doing any manual, unskilled, technical, operational, clerical or supervisory work and the mere fact that in the course of performing his duties he had to also maintain, incidentally, records to evidence the duties performed by him, day to day, cannot result in the conversion of the post of "Inspector" into any one of those nature _____________________________________________________________ LIR NO. 586/06 Page 19 of 33 pages 20 noticed above, without which, as held by a Constitution Bench of this Court in the decision in H.R. Adyanthaya case the appellant cannot fall within the definition of "workman". The powers of an Inspector and duties and obligations cast upon him as such are identical and akin to law enforcing agency or authority and also on a par with a prosecuting agency in the public law field."
32. In the case of MUIR MILLS UNIT OF NTC (UP) LTD vs SWAYAM PRAKASH SRIVASTAVA, (2007) 1 SCC 491 Hon'ble Supreme Court held that professionals (Legal Assistant in that case) can never be termed as "workman" under any law. It was held that an occupation is a principal activity that earns money for a person while profession is an occupation that requires extensive training, study and mastery of specialized knowledge and usually has a professional association, ethical code and process of certification/licensing. Hon'ble Supreme Court observed that the claimant who was working as legal assistant and used to supervise court cases is a professional and could not be termed as "workman".
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33. In the case of C. GUPTA vs GLAXO SMITHKLINE PHARMACEUTICAL LTD, 2004 LLR 574, Hon'ble Bombay High Court held that an industrial relation executive could not be termed as "workman" under section 2(s) of the Act. It was held that if an employee's predominant work is advising and guiding his subordinates, it will be mainly supervisory and he cannot be treated as a workman.
34. The view taken by Hon'ble Bombay High Court in C. GUPTA (supra) was upheld by the Hon'ble Supreme Court in the case of C. GUPTA vs GLAXO SMITHKLINE PHARMACEUTICAL LTD, (2007) 7 SCC 171 holding that the duties undertaken by claimant of that case fell within managerial cadre as Industrial Relations Executive. It was held that nomenclature is not of any consequence; whether or not a particular employee comes within the definition of "workman" has to be decided factually.
35. In the case of MANAGEMENT OF M/s SONEPAT COOPERATIVE SUGAR MILLS LTD vs AJIT SINGH, JT 2005(2) SC 370 Hon'ble Supreme Court held that the issue as to whether an employee answers the description of "workman" _____________________________________________________________ LIR NO. 586/06 Page 21 of 33 pages 22 or not has to be determined on the basis of conclusive evidence and it would not be correct to contend that merely because the employee had not been performing managerial or supervisory duties, ipso facto he would be a workman. The claimant of that case, appointed as legal assistant had not been performing any stereotyped job; he used to render legal opinion, draft pleadings and appear in courts as well as act as enquiry officer in domestic enquiries. Hon'ble Supreme Court held the claimant as not a workman.
36. Falling back to the present case, at the very outset I must record that statement of the workman that he was only 12th standard pass is not believable at all in view of his designation with the management as well as his own documentary record. As per his own case, the workman was drawing a monthly salary of Rs.11,655/- at the time of alleged termination of his services.
37. All the witnesses examined on behalf of management explained the nature of work being performed by the workman during his service tenure with the management and there is no cross examination on this aspect. On his own also, the _____________________________________________________________ LIR NO. 586/06 Page 22 of 33 pages 23 workman in his chief examination did not describe the nature of work being done by him. Indisputably, nomenclature of the designation held by the workman was Sr. Officer, HRD. All the witnesses examined on behalf of the management explained that the workman used to make recruitment of workers in the factory, organise employee's health camps, conduct welfare programmes, supervise housekeeping, ensure compliance of various labour laws and liason with various government departments. MW2 and MW3 specifically deposed that the workman was employed in supervisory capacity and not as a workman in terms with Industrial Disputes Act. None of the management's witnesses was cross examined on these aspects.
38. In his cross examination, the workman stated that he used to supply material to the six housekeepers in the establishment. He also stated that his present job as a consultant involves marking attendance of employees and preparing records of PF&ESI. As mentioned above, after initial hesitation the workman admitted in his cross examination that he had been sent to Korea for technical training. _____________________________________________________________ LIR NO. 586/06 Page 23 of 33 pages 24
39. Most importantly, workman's own documents Ex.WW1/MXA to Ex.WW1/MXE conspicuously reflect his status and job profile. As mentioned above, workman admitted genuineness of all these documents in the course of his cross examination.
40. Ex.WW1/MXA is an application for employment filled by workman in his own hand. As per the same, he qualified B.A. in the year 1989 and MBA, HRM in the year 1998 with first division from Agra University. As per the column of experience in Ex.WW1/MXA, the workman worked as Sr. Personnel Officer from 11/07/89 to 30/06/96 with Orient Papers, as Head P&A from 01/07/96 to 06/03/04 with the present management and as Head HR from 07/03/04 till date with Bakson Drugs.
41. Ex.WW1/MXB is the curriculum vitae of the workman bearing his signatures on each page. The column of responsibilities in Ex.WW1/MXB shows that the workman had been engaged in:
1. Formulation and implementation of personnel and human resource policies.
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2. Manpower planning, resorting, advertisement, notification, selection process, induction/placement, precedent verification, letter of appointment and service bond/agreement.
3. OD, KRA, job profile, appraisals-
assessment and implementation, training and development, on-job training, quality circle, increment, confirmation and promotion.
4. Supervision, control and administration over the affairs of Time Office-salary, wages, PF, ESI, overtime, leaves, attendance, contract labour etc.
5. To ensure statutory compliance under various labour and civil laws.
6. To ensure industrial peace and harmony, coordination, discipline, warnings, charge sheet, show cause notice, domestic enquiries, standing orders, strike, lay off, lock out, retrenchment, labour cases, conciliation proceedings, labour court, labour tribunal and High Court etc.
7. Authorized signatory for banks, sales tax, central excise and customs, PF, ESI and other departments.
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8. Cheque drawing power Rs.1,00,000/- with joint signatures.
42. Ex.WW1/MXD is a copy of covering letter whereby the workman filed PF annual return for March' 06 to February' 07 as authorized signatory of M/s Bakson Drugs & Pharmaceuticals Pvt Ltd.
43. Ex.WW1/MXE is the visiting card of the workman showing him as Head of Corporate-HR with Baksons Homeopathy.
44. It would be pertinent to record that all these documents viz. Ex.WW1/MXA to Ex.WW1/MXE were put to the workman in cross examination and he does not say that these documents reflect his job profile in an exaggerated manner for procuring the job.
45. In view of nature of duties, being performed by the workman, I have no hesitation to hold that he was working in managerial cadre and cannot be treated as a workman in terms with definition under section 2(s) of the Industrial Disputes Act. Issue no. 2 is accordingly decided against the _____________________________________________________________ LIR NO. 586/06 Page 26 of 33 pages 27 workman.
ISSUE NO. 3
46. On the issue under consideration, no arguments were advanced on behalf of workman. Per contra, ld authorized representative for management pointed out Ex.WW1/MXA to show that as per workman's own case, he left services of the management on 06/03/04 and took up new job on 07/03/04, which clearly shows that even as per workman, he left services of the management with the intention not to resume the same.
47. In the case of GT LAD vs CHEMICAL FIBRES OF INDIA, AIR 1979 SC 582, Hon'ble Supreme Court framed a specific question as regards true meaning of the expression "abandonment of service" and held as under:
"In the Act, we do not find any definition of the expression "abandonment of service".
In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of Random House Dictionary, the word "abandon" has been explained as meaning to leave completely _____________________________________________________________ LIR NO. 586/06 Page 27 of 33 pages 28 and finally; forsake utterly, to relinquish, renounce, to give up all concern in something. According to the Dictionary of English Law by Earl Jowitt(1959 edition) "abandonment" means "relinquishment of an interest or a claim". According to Blacks Law Dictionary "abandonment"
when used in relation to an office means "voluntary relinquishment". It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as "abandonment of office".
From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same................. Abandonment or _____________________________________________________________ LIR NO. 586/06 Page 28 of 33 pages 29 relinquishment is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
48. Falling back to the present case, management in its pleadings took a clear stand that the workman abandoned his job on 16/12/2000 apprehending departmental action for having sexually harassed a girl and having committed other irregularities. In support of his case that his services were terminated on 03/01/01, the workman brought absolutely no evidence to show that he worked for the management during the disputed period of 16/12/2000 to 03/01/01.
49. The first complaint lodged by the workman is Ex.WW1/1, which is dated 03/01/01. It fails to appear convincing that on the same day when services of a workman are dispensed with, he would straight away go and lodge such a complaint and that too after locating and engaging a labour union. That lends credence to the version of the management that the workman left services on 16/12/2000.
50. There is no evidence as to what steps were taken by the workman after 16/12/2000 with an effort to join back his _____________________________________________________________ LIR NO. 586/06 Page 29 of 33 pages 30 service with the management. It shows that the workman left service with the clear intention not to resume the same.
51. Besides, there is another set of dates presented by the workman himself vide his handwritten Ex.WW1/MXA, as per which he left services of the management on 06/03/04 and joined Bakson on 07/03/04. That also establishes that the workman left his service with the intention never to resume.
52. In view of above discussion, issue no. 3 is decided in favour of management and it is held proved that the workman himself abandoned his job.
ISSUE NO. 4 (RELIEF)
53. In view of above discussion, it is held not proved that Sh. Har Narayan Sharma, the claimant is covered under the definition of "workman" as laid down in section 2(s) of the Industrial Disputes Act. It is held not proved that services of the claimant were terminated by the management. Consequently, it is held that the workman is not entitled to any relief against the management.
COST OF PROCEEDINGS
54. Then comes the issue of cost of proceedings under _____________________________________________________________ LIR NO. 586/06 Page 30 of 33 pages 31 section 11(7) of the Industrial Disputes Act. As per the said provision, this court has power to determine by and to whom and to what extent costs of any proceedings are to be paid. Discussion on issue no. 2 clearly reflects that the claimant is not a lay person so far as labour laws are concerned. The claimant, as per his own evidence is an expert manager, well versed with labour laws. Looking into the documentary evidence discussed in issue no. 2, it cannot be believed that the claimant was ignorant of his legal status. The claimant was fully aware that in view of nature of his duties, he falls much beyond the scope of expression "workman" as defined under section 2(s) of the Industrial Disputes Act. Despite that he raised this frivolous dispute, which the management was compelled to contest. As such, the workman is held liable to pay a sum of Rs.20,000/- to the management towards cost of these proceedings.
55. Conduct of the claimant in the course of the proceedings also needs to be highlighted. At the stage of final arguments, in order to establish that the claimant is gainfully employed, the management produced a statement of account _____________________________________________________________ LIR NO. 586/06 Page 31 of 33 pages 32 held by the claimant with the ICICI Bank showing monthly deposit of salary. On being shown the statement of accounts, the claimant stated on oath that this statement of account pertains to an account held by him jointly with his brother and it was argued on his behalf that the salary entries are of his brother. But on the very next date, management filed a certificate issued by ICICI Bank to the effect that the said account is a salary account with mode of operation as single. Thereafter, despite direction the claimant did not appear. Such blatant falsehood, strictly speaking might fall beyond the purview of perjury, but it exhibits the impunity with which frivolity is advanced in such litigations conducted under the sacrosanct social welfare legislations.
56. Such frivolous litigations brought deliberately by such educated persons with oblique motives not only lead to unwarranted imposition of litigation on the other side, such litigations also cause avoidable drain of precious judicial time and energy at this time of over flowing dockets. In the process, many genuinely oppressed workmen, for whose benefit this legislation was brought suffer delays. Such litigations must be _____________________________________________________________ LIR NO. 586/06 Page 32 of 33 pages 33 dealt with sternly. For bringing this frivolous litigation, the claimant is further burdened with cost, conservatively quantified as Rs.5,000/- which shall be deposited with the Shahdara Bar Association Advocates Welfare Fund, to whom a copy hereof be sent for information and action.
57. Reference accordingly stands answered. Copies of this award be sent for publication and file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 29th April, 2008.
(GIRISH KATHPALIA) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURT-XIX, KARKARDOOMA COURTS, DELHI.
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