Delhi District Court
Vipin Jain vs M/S. Jain Co-Operative Bank Ltd on 6 April, 2024
IN THE COURT OF SHRI ARUN GOEL,
PRESIDING OFFICER : LABOUR COURT - X
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 2540/19
Sh. Vipin Jain,
S/o Late Sh. Sunder Lal Jain,
R/o 1/5772, First Floor,
Gali no. 14A, Balbir Nagar,
Shahdara, Delhi - 110032
C/o Sh. S.K. Jain & Sh. Virender Singh,
Chamber No. 363, Western Wing,
Tis Hazari Court, Delhi110054.
... Workman
Versus
M/s. Jain Cooperative Bank Ltd.,
80, Darya Ganj, New Delhi110002
... Management
Date of institution of the case : 16.10.2019
Date of passing the Award : 06.04.2024
A W A R D:
1.A reference No. F.24(200)/18/Ref.CD/Lab./885 dated 22.08.2019 was received from appropriate government for adjudication and LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 1/39disposal of industrial dispute between the aforesaid claimant and the management by formulating the following terms of reference :
"Whether the dispute between Sh. Vipin Jain, S/o Late Sh. Sunder Lal Jain, Age around 40 years and M/s Jain Cooperative Bank Ltd. falls under the jurisdiction of Govt. of NCT of Delhi and if so, whether Sh. Vipin Jain abandoned his job of his own or his services have been illegally terminated by the management and if so, what relief is he entitled and what directions are necessary in this respect?"
2. A notice of the aforesaid reference was sent to the claimant for filing of his statement of claim on 16.10.2019. On 15.01.2020, AR for the claimant appeared and filed statement of claim wherein it is stated that claimant was working with the Management as a Clerk/Cashier since 29.06.2001 and his last drawn wages were Rs. 31,835/ per month.
3. It is stated by the claimant that during his tenure of service, he performed his duties with utmost dedication, sincerity and to his best ability. Lastly, he was posted at Gandhi Nagar Branch, Delhi and his past record was flawless throughout his employment period.
4. It is further stated in the claim that the management of the bank during the period of demonetization, i.e. w.e.f. 08.11.2016 LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 2/39pressurized each and every employee including the claimant to do some illegal acts while performing their duties, which the claimant and other employees of the bank were not supposed to follow, as a result of which most of the employees of the bank including the claimant got victim of malpractices of the management.
5. It is further stated in the claim that the above said fact was also established from the raid of the Income Tax Department wherein there was a clear admission of the Senior Officers of the Bank in admitting their guilt and their clears statements before the officers of Income Tax Department that all these acts were being conducted under the pressure of the management. It is further submitted that prior to demonetization, about 105 employees were working in different branches of the bank but during the period of demonetization, the Management of the bank was in search of suitable opportunity to implicate the employees of the bank in false, baseless and frivolous allegations and those employees to whom the Management of Bank wanted to sack from their services by shunting them out and also to provide shelter to those employees who were henchmen/so called loyal to the Management/Bank official and those were ready to do illegal acts as per wishes, dictates and desires of the Management.
LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 3/396. It is further stated that the Management of the Bank started hatching conspiracy against the employees of the bank with a predetermined motive to victimize them and to throw them out of the bank premises, while taking advantage of demonetization. The Management in order to penalize the workman started reducing the salary of the employees and the same were based on "productivity Linked wages" meaning thereby 30% of earned wages were used to be withheld under the pretext that the same shall be paid on the basis of Productivity.
7. It is further stated that employees of the bank, against mal practices of the managing committee as well as Bank officials of Management, decided to call a meeting of the employees of the bank and a joint meeting of all the employees was held and it was unanimously decided to declare a "Pen Down Strike" in the bank w.e.f. 16.04.2018 and to this effect, a mail to R.B.I., RCS and CEO of the bank was sent on 15.04.2018 informing them with regard to "Pen Down Strike" w.e.f. 16.04.2018, letters were also delivered to the aforesaid Authorities as well as to the concerned Police Station of Daryaganj.
8. It is further stated that on 16.04.2018, the claimant and other employees of the bank, in their different branches went to resume LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 4/39their duties, but to their surprise by that time, the officials of the bank/managing committee hired the services of Bouncers and they did not allow the claimant and other employees of the bank, to enter into the bank premises. After finding no other alternative, the claimant and other employees of the Bank started protesting against the malpractices of the bank officials, outside the bank premises and this agitation remained continue.
9. It is further stated that the claimant was issued a show cause notice dated 23.04.2018 alleging therein that he had been absenting from the place of his duty without proper permission since 16.04.2018. The said show cause notice was replied by the claimant vide reply dated 01.05.2018 requesting therein to withdraw the show cause notice and to drop disciplinary proceedings. However, despite the self explanatory reply of the claimant, the management issued termination order dated 02.05.2018 without issuing any Charge Sheet or holding any domestic enquiry on the ground that he had been absenting from the place of his duty without proper permission since 16.04.2018 and in the said circumstances, the competent authority of the bank has decided to declare him voluntarily abandoned/resigned from employment of his own volition.
10. It is further stated that the services of the claimant were LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 5/39terminated under the garb of voluntarily abandoned/resigned from employment and that the claimant had never remained absent from duty at any point of time nor he had any intention to leave the employment of his own or to tender resignation. To the contrary, the claimant was on "Pen Down Strike" and to this effect, prior intimation and information was sent to the Bank Officials as well as to the concerned Authorities, mentioned above, but the management with the help of hired Gundas refused the entry of the bank employees in the bank premises on 16.04.2018 and even subsequently, they were not allowed entry in the bank. The claimant and other employees of the bank have no other option except to remain outside the gate of the bank and continue their protest against the malpractices adopted by the management as detailed above.
11. It is further stated in the claim that the claimant had never any intention to leave or abandoned the employment, as he had never remained absent from duty nor abandoned the services voluntarily. To the contrary, the services of claimant were terminated illegally and/or unjustifiably vide termination order dated 02.05.2018 that too without issuing any Charge Sheet or holding any domestic enquiry. It is further stated that the management while terminating the services of the claimant had neither paid nor offered to pay notice pay in lieu of notice and service compensation rendering the LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 6/39termination violative of the mandatory provisions of Sec.25F of the Industrial Disputes Act, 1947 for want of noncompliance and adherence of the provisions contained therein in the said Act and that the management while terminating the services of the claimant had never followed the mandatory principles of "Last Come First Go" and possibilities of recruiting new hands on the same post cannot be ruled out. Besides this, the present termination is based on victimization and amounts to unfair labour practice as defined under "Vth Schedule of the I.D. Act, 1947". It is further stated in the claim that almost 70 employees of the bank were removed from their services on whimsical grounds, as some employees were dismissed and some were compelled/forced to tender their resignation or opt for V.R.S and that the present termination order dated 02.05.2018 has not been issued by the Competent Authority but was issued by the General Manager, who was not the Appointing Authority of the claimant.
12. It is further stated that the claimant submitted an appeal dated 09.05.2018 to the Appellate Authority against the illegal and arbitrary termination of services to the management requesting therein to consider the appeal on merits and setaside the impugned order dated 02.05.2018, as issued by the General Manager but the decision of dismissing of the appeal of the claimant is arbitrary LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 7/39without assigning any reason or justification and therefore is apparently illegal besides being bad in law.
13. It is further submitted that the claimant being aggrieved of the aforesaid wrongful, illegal and arbitrary action of the management sent a legal notice dated 04.10.2018 to the Management through S.K. Jain, Advocate under speed post requesting therein to setaside the termination order and to reinstate the workman with continuity of service and full back wages but the management after having received the same neither considered the just, genuine and legal legitimate demands of the workman nor bothered to submit a reply to the said legal notice.
14. It is further stated in the claim that the claimant after having no other alternative initiated the conciliation proceedings by way of filing a statement of claim before the Conciliation Officer, Pusa, New Delhi, but the Conciliation was resulted in failure on account of non cooperative, vindictive and adamant approach of the management. The conciliation resulted in failure. Hence, a reference was made to the court.
15. It is further stated that the claimant is unemployed since the date of wrongful and illegal termination of services, despite his best LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 8/39efforts to seek employment. Therefore, the claimant prayed that the Management be directed to reinstate him to services with full back wages and consequential benefits.
16. A notice of the claim statement, filed on behalf of the claimant, was supplied to the management on 15.01.2020. On 27.02.2020, Sh. Sunny Malik, Legal Officer appeared and filed written statement on behalf of the Management.
17. In the written statement it is submitted that the management in this case is a Bank which has avowed objective of being a transparent, just, fair, accountable, equitable and customer oriented and customer centric organization which is covered under the definition under section 5(b) of the Banking Regulation Act, 1949 as it receives deposits of money from the public and provides all banking services including withdrawal by cheque, draft order or otherwise and the dispute squarely falls within the domain of Central Government. Relying on the judgements titled as Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd., 2020 SCC Online SC 431 and State Bank of India vs. The Union of India & Ors. (Civil Writ Jurisdiction Case No. 14583 of 2016), M/s. Hindustan Unilever Ltd. vs. The LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 9/39Presiding Officer (W.P. No. 33610 of 2013) decided on 25.09.2019, Vijay S. Sathaye vs. Indian Airlines Limited and Ors (2013) 10 SCC 253, it is further submitted that the present industrial dispute is not within the jurisdiction of Govt. of Delhi and the entire case of the claimant is liable to be dismissed.
18. It is further stated in the written statement that the claimant has not disclosed the material facts as to why he remained absent from the services against the bank services rules. It is further stated that the claimant was an employee of the Management Cooperative Bank under Delhi Cooperative Societies Act (DCS Act) and was working on the post of Clerk cum cashier and that there is no industrial dispute between the claimant and the Management Bank as the claimant was habitual of abandoning his duties towards the Management Bank at his own will. It is further stated that he without proper intimation (even to his immediate officer) had absented from the place of his duty and taken part in Dharna's held outside the branches of Management bank since 16.4.2018 and this fact was confirmed by him by an email dated 15.04.2018.
19. It is further stated that due to claimant's conduct, the Management Bank unwillingly issued two showcause notices dated 17.04.2018 bearing no. JCB/HO/Mail and dated 23.04.2018 bearing LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 10/39no. JCB/5602/HO/18 respectively asking the claimant to join his services, but no reply was ever received by the Management Bank till date and he remained absented from his duties between the period of 16.04.2018 to 01.05.2018 and intentionally ignored the above show cause notices issued to the claimant. It is further stated that due to this conduct, the competent authority of the Management bank decided to declare him to have voluntarily abandon/resigned from his employment from the date of his unauthorized absence from his duties i.e., 16.04.2018 in terms of relevant provisions of Staff Service Rules, which had been duly approved by the management committee as per Section 135 of DCS Act2003, and the same was duly informed to him vide letter dated 02.05.2018 bearing no. JCB/HO/2018/5653.
20. It is further submitted that after passing the above order dated 02.05.2018, the claimant gave a reply in the evening of 02.05.2018 in the bank vide letter dated 01.05.2018. Thereafter, claimant filed an appeal dated 09.05.2018 before the competent authority and he admitted that he was in pendown protest from 16.04.2018 and had informed the same to the Management Bank via email sent on 15.04.2018. The said appeal was disposed off as no satisfactory reply given by the claimant in his defence as claimant failed to disclose why he remained absent from his duties and what was the LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 11/39reason to ignore the show cause notice duly served upon him by the management. It is further stated that the Staff Service Rules of the Management Bank does not permit the employees of the bank to be involved in any kindly of strike/dharna/protest and it caused irreparable loss to the reputation and business of the Management Bank and prayed that the claim of the claimant is liable to be dismissed with heavy cost.
21. Rejoinder has not been filed on behalf of the workman despite opportunity. After completion of pleadings, following issues were settled on 29.08.2020 : "(i) Whether the dispute between workman and management falls under the jurisdiction of Govt of NCT of Delhi? OPW.
(ii) If issue no.1 is decided in affirmative, whether workman abandoned the services on his/her own and voluntarily retired? OPM.
(iii) Whether the services of workman have been terminated illegally and unjustifiably? OPW.
(iv) Relief."
22. Thereafter, the matter was listed for workman evidence. The claimant examined himself as WW1 and tendered his evidence by way of affidavit Ex. WW1/A. He has relied upon the following LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 12/39documents: (i) copy of letter addressed to DCP, Ex.WW1/1 (ii) copy of letter addressed to CEO, Ex. WW1/2 (iii) copies of mail, sent to the concerned officials Ex.1/3 (colly) deexhibited and marked as 'X', (iv) letter dated 19.04.2028 sent to Registrar of Co operative Societies by the workman Ex.WW1/4, (v) reply dated 01.05.20218 Ex.WW1/5, (vi) letter dated 23.04.2018 to the Chairman of the management, Ex.WW1/6, (vii) copy of termination letter dated 02.05.2018 Ex.WW1/7, (viii) the copy of appeal dated 09.05.2018 and the reminder dated 11.06.2018 Ex.WW1/8 (colly),
(ix) copy of legal notice dated 04.10.2018 Ex.WW1/9 (colly), (x) copy of order dated 12.07.2019 Ex.WW1/10, copy of the claim dated 22.11.2018 filed before the Conciliation Officer Ex.WW1/11.
23. Thereafter, WW1 was cross examined by Sh. Ahinav Sharma, AR for the management. During cross examination, WW1 stated that he had completed his B.Com. He further stated that at the relevant time, he was working in the Bank and was performing the duties such as opening the bank accounts, receiving and depositing cash in the accounts of the customers and that he performed the duties as per the instructions of the Manager/Senior. During further cross examination he stated that he was working in the Laxmi Nagar Branch of the Bank in or around April 2018 and that the working hours of the bank were from 10:00 AM10 05:00 PM. He admitted LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 13/39that he was governed by the Staff Service Rules of the Bank and as amended from time to time and he had never challenged the Staff Service Rules and their amendments in any court of law.
24. During further cross examination, WW1 admitted that he was aware of the term productivity linked wages (PLW) which means that the management used to give us targets and we were required to comply with the same and in case the same were not met, 30% of the earned wages were reduced. The PLW was introduced in or around January 2017 and that he had never challenged the above scheme in any court of law and had also not registered any protest against the said scheme. On a query put by AR for the management, whether he could show from the file any document reduction of salary to extent of 30% in case the directions as per PLW were not complied with, WW1 replied in negative. He stated that there was no other notice with regard to the strike of 16.04.2018 prior to 15.04.2018 and that Pen down strike means that they will come to the bank but not use the pen (for writing purposes) but they will sit on their alloted seats. He agreed that that effectively pen down strike would entail not working as per their duties.
25. During further cross examination, WW1 was confronted with the letter dated 14.04.2018 but served to the bank on 15.04.2018 and LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 14/39physically on 16.04.2018 at 10:05 AM where the witness at Sl. No. 9 (identified as MarkA) states that the pen down strike will take place outside the bank premises at Darya Ganj office. He further stated that there were around 7080 employees, who were working in all branches of the bank in or around April 2018. There were around 32 employees who were participating in the strike. It may be possible that some of the employees who participated in the strike joined the management. He agreed that Ms. Alka Aggarwal (Sl. No.24) and Ms. Kavita (Sl. No. 25) in Ex. WW1/1 had joined the bank after 45 days from 16.04.2018. He further stated that he had never written to the bank for resuming the duties after 16.04.2018. Although, he was working in the Laxmi Nagar Branch, hehad come to Darya Ganj Branch specifically to join the strike.
26. Thereafter, workman evidence was closed vide order dated 25.05.2023 and the matter was listed for management evidence.
27. On 14.12.2023, MW1 Sh. Parmender Kumar Jain had tendered his evidence by way of affidavit Ex. MW1/A. He relied upon only one document Ex.MW1/1 which is the authority letter.
28. Thereafter, MW1 was cross examined by Sh. S.K. Jain, AR for the claimant. During cross examination, MW1 admitted that the LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 15/39management was aware in advance before the date of protest which was going to be scheduled w.e.f 16.04.2018 through email which was received on 15.04.2018 in the branch of the bank but he do not remember the name of the branch. To a query put by AR for the workman regarding up to which period the strike was continued w.e.f 16.04.2018, MW1 replied in negative and stated that he do not know the exact period up to which period the protest was continued by the employees of the bank which they had started on 16.04.2018. He further do not know whether the workers were paid salary by the management for period of strike.
29. During further cross examination MW1 stated that he had not personally seen the protest conducted by the bank employees dated 16.04.2018 and that he do not know how many employees of the bank were on strike. He further do not know whether the bank had issued chargesheet on the basis of show cause notice dated 23.04.2018 Ex.MW1/2. He further stated that he do not know whether any domestic inquiry was conducted by management regarding allegation made in the show cause notice Ex.MW1/2. He further stated that he was not aware about the bank service rule applicable to the management in the year 2018.
30. During further cross examination, MW1 admitted that the LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 16/39services of the worker was terminated on 02.05.2018 on the basis of show cause notice dated 23.04.2018 Ex. MW1/2 and further admitted that he had not placed on record any document except Authority Letter Ex. MW1/1. The letter Ex. WW1/7 was issued by the management to the worker and that he do not know whether the management had paid or offered any retrenchment benefit to the claimant at the time of termination of his service. He also do not know whether the name of the claimant was removed from the muster roll/attendance register after 02.05.2018. He also do not know whether the management had informed the appropriate Govt. and Registrar of cooperative societies about the strike conducted by the employees dated 16.04.2018.
31. During further cross examination, MW1 stated that he do not know whether the bank had offered the reinstatement of service to the claimant during conciliation proceedings. He further stated that he do not know whether the services of all the workers, who had participated in strike dated 16.04.2018 had been terminated. MW1 denied the suggestion that the termination of the worker was illegal. He further stated that the address mentioned on the demand notice Ex. WW1/9 was the correct address of the management.
32. Thereafter, on 14.12.2023, AR for the Management has closed LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 17/39Management Evidence and the matter was listed for final arguments.
33. Final arguments were heard from both the parties. Written submissions have also been filed by both the parties along with the relevant judgments. File perused.
34. In support of his submissions, AR for the workman has relied upon the following judgments:
(i) Bharat Coop. Bank (Mumbai) Ltd. vs. Coop. Bank Employees Union; (ii) AIR 1979 S.C. 582 G.T. Lad and Others vs. Chemicals and Fibres India Ltd (iii) M/s.
Scooters India Ltd. v. M. Mohammad Yaqub 2001 LLR 54 Supreme Court of India;
(iv) D.K. Yadav vs. M/s. J.M.A. Industries Ltd., decided on 07.05.1993;
(v) AIR 2002 S.C. Uptron India Ltd. vs. Shammi Bhan & Anr;
(vi) 2020 LLR 754 Delhi High Court 'Jagdish Chander vs. Delhi Transport Corporation;
(vii) Deepali Gundu Surwase vs. Kranti Junior Adhyapak & Ors. Supreme Court of India, Civil Appeal No. 6767 OF 2013;
(viii) Syndicate Bank & Anr. Vs. K. Umesh Naik reported in FLR94 (69) 806 S.C.;
(ix) State Bank Staff Union Madras Versus The State LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 18/39Bank of India 19.12.1990 (1991) ILL.J. 163 MAD. (1992);
(x) Civil Appeal No. 2393 of 2022 Armed Force Ex. Officers Multi Service Express Society Ltd. Vs. Rashtriya Mazdoor Sangh (INTUC) S.C.I. 4 (2006) 08 DEL CK 0086;
(xi) Delhi High Court Case No. LPA 1630 OF 2005 D.T.C. VS. Jag Bhushan Lal & Ors. vs. Delhi Transport Corporation vs. DTC Mazdoor Congress 1991 AIR101 (SC);
(xii) Morarji Gokuldas Spining and Weaving Co. Ltd. Vs. Maruti Yeshwant Narvekar and Others 2000 LLR 63 (Bombay High Court);
(xiii)G.T. Lad and Ors. vs. Chemicals and Fibres India Ltd, AIR 1979 SC 582;
(xiv) M/s. Scooters India Ltd. vs. M. Mohammad Yaqub 2001 LLR 54, Supreme Court of India;
(xv) Sonepat Coop Sugar Mills vs. Presiding Officer, Labour Court decided on 14th May, 1986 (Punjab & Haryana High Court);
(xvi) K.A. Annamma Vs. The Secy, Cochin (S.C.) dt. 12th January 2018;
(xvii) Maharashtryo State Cooperative Housing Finance Corporative Society Hd. (S.c) Civil appeal No 1488 of LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 19/392017;
(xviii) Survarnayug Sahakari Bank Ltd And others Vs. Suresh Shivajirao bale and others (2023) 10 Bom Ck 0018 dated 09/12/2023;
35. In support of his submissions, AR for the management has relied upon the following judgements:
(i) Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd., 2020 SCC Online SC 431;
(ii) State Bank of India vs. The Union of India & Ors.
(Civil Writ Jurisdiction Case No. 14583 of 2016);
(iii) M/s. Hindustan Unilever Ltd. vs. The Presiding Officer (W.P. No. 33610 of 2013) decided on 25.09.2019;
(iv) Vijay S. Sathaye vs. Indian Airlines Limited and Ors (2013) 10 SCC 253;
36. Now, in the light of evidence available on record and submissions made by the parties, my issuewise findings are as under: ISSUE NO.1 :
37. The first issue is regarding jurisdiction. In the reference received from appropriate government, one of the terms of reference is, whether the dispute between the claimant and the management falls LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 20/39under the jurisdiction of government of NCT of Delhi. The management in this case has taken the objection regarding the jurisdiction of Government of NCT of Delhi to make reference. It is submitted by the management that the management is a banking company engaged in the business of banking. In that case, the appropriate government for making a reference is the Central Government, while in this case the reference has been made by the Government of NCT of Delhi. So the reference has been made without jurisdiction.
38. The claimant on the other hand has opposed this contention of the management. It is submitted on behalf of the claimant that government of NCT has jurisdiction to make a reference and the objection raised by the management is not tenable.
39. Before proceeding further it is relevant to have the judgment of the Hon'ble Delhi High Court titled as "Delhi v. Mahavir, 2002 SCC OnLine Del 1528, wherein the Hon'ble Delhi High Court has observed as follows:
"24. Having regard to the fact that the Lt. Governor is the agent of the President of India, he for all intent and purport would be the Central Govt, in relation to statutes which are applicable to NCT of Delhi including Industrial Disputes Act."
LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 21/3940. A similar objection regarding jurisdiction about making reference was raised in a case titled National Buildings Construction Corporation Ltd., New Delhi Versus M.K. Jain and others 1980 SCC OnLine Del 504 wherein the Hon'ble High Court has held as follows:
"11. Even otherwise no exception could be taken to the order of reference, even if it be assumed that Central Government was the appropriate Government, inasmuch as the distinction between the Central and the State Governments in relation to the Union Territory in our constitutional framework is rendered illusory. Union Territory is administered by the President of India under Art. 239 of the Constitution of India, acting to such extent as he thinks fit, through the Administrator, to be appointed by him. [n the case of a Union Territory, there is an amalgamation of the constitutional classification of legislative and executive powers between the Centre and the States. According to Section 3(8) of the General Clauses Act, "Central Government" in relation to the administration of a Union Territory means the Administrator acting within the scope of authority given to him under Article 239 of the Constitution of India and in terms of Section 3(60) of the General Clauses Act, "State Government", as respects anything done or to be done in a Union Territory, means the Central Government. In the case of a Union Territory, therefore, the Central and State Governments merge and it is immaterial whether an order of reference is made by one or the other. This contention must, therefore, fail."
LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 22/3941. Thus, in view of the above settled law, both Central Government and State Government merge in case of Union Territory. Delhi is a Union Territory, So reference can be made either by Central Government or State Government and there is no difference between them. Thus, the reference made by the Government of NCT of Delhi is perfectly valid and hence, is within its jurisdiction. Hence, this issue is decided in favour of the claimant.
ISSUE NO.2:
42. The onus to prove this issue was upon the management. The Management has stated that the claimant in this case had abandoned his job as he had been absenting from his place of duty without permission since 16.04.2018. A show cause notice dated 17.04.2018 and 23.04.2018 Ex.MW1/2 was issued by the management to the workman to join his duty but no reply was received within time and as per the Service Rule applicable to the workman, he had been absenting from his duty for more than 15 days, hence it is a case of abandonment and the management vide order 02.05.2018 Ex.WW1/7 had terminated the services of the claimant on the ground of voluntarily abandoned/resigned. An appeal had been filed by the claimant dated 09.05.2018 and the same was dismissed vide order dated 12.07.2019, wherein the management has held that the LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 23/39claimant had abandoned his employment as per Section 5 of the Staff Service Rules. It was argued by the AR for the management that as per Section 5 of the Staff Service Rules, an employee if remain continuously absent for 15 days without prior intimation or permission, the competent authority can declare that employee has abandoned/resigned his employment and he ceases to be in the employment of the management and it has been done in the case of the claimant.
43. Before proceeding further, it is relevant to have Section 5 of the Staff Service Rules before us.
"Section5: Abandonment of Employment An employee who remains absent either without prior intimation or permission continuously for a period exceeding fifteen days shall at the discretion of the Competent Authority be declared to have voluntarily abandoned / resigned from the employment of his/her own volition and be treated as having ceased to be in the employment of the Bank."
44. Perusal of Section 5 on which reliance has been placed by the management, speaks of absence from duty continuously for a period of 15 days, however, the relevant point in Section 5 is that the absence should be without prior intimation or permission. The point in consideration in this case is whether there was prior intimation to LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 24/39the management about the absence of the claimant from duty. The management in this case has not denied that they have received letters Ex.WW1/1 dated 14.04.2018 and Ex.WW1/2 dated 14.04.2018 (signed by employee of the Management including claimant) along with three emails Mark X (colly) all dated 15.04.2018, wherein the employees of the Management have informed it that they are proceeding on an agitation which will be started from 16.04.2018 and it will be held outside the premises of the bank. In that case, Management had a prior intimation regarding the fact that the claimant will absent from his duty from 16.04.2018 as he was engaged in a protest along with other employees against the management. Thus, the contention of the management that they had no prior intimation about the absence of the claimant from duty is not tenable.
45. The management has also alleged that there is abandonment of service by the claimant and show cause notices were issued to the claimant to join his duty but the claimant failed to give reply to the said notice within time and had not returned to his employment. It is further claimed that it shows that there is abandonment of job by the claimant.
46. The law regarding the abandonment of services by an employee LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 25/39and how it is to be inferred is explained by Hon'ble Supreme Court in case titled as G.T. Lad v. Chemical and Fibres of India Ltd., (1979) 1 SCC 590 wherein Court observed as follows.
"5a. Re Question 1: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 the Random House Dictionary, the word "abandon" has been explained as meaning "to leave completely 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 Edn.) "abandonment" means "relinquishment of an interest or claim". According to Black's 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 an "abandonment of office".
6. 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. In Buckingham & Carnatic Co. v. Venkatiah [AIR 1964 SC 1272 : (1964) 4 SCR 265 : (1963) 2 LLJ 638 : (196364) 25 FJR 25] it LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 26/39was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to a employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.
Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra case[Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303] , can be legitimately said to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could, by no stretch of imagination, be construed as voluntary abandonment by them of the Company's service. In Express Newspapers (P) Limited v. Michael Mark [AIR 1963 SC 1141 : (1963) 3 SCR 405 : (1962) 2 LLJ 220 : 22 FJR 346] , which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 27/39them. In the present case also the appellants' absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants."
47. Perusal of the above stated law as laid down by the Hon'ble Supreme Court reveals that following two points emerge
1. Abandonment or Relinquishment of service is a question of intention and such intention cannot be attributed to employee without adequate evidence in that regard and the onus is upon the management to prove that there was animus on the part of the claimant to abandoned the services of the management.
2. Participation in a peaceful strike does not amount to abandonment of service.
48. In this case, the management had issued two notices 17.04.2018 and 23.04.2018. The Management has not placed on record neither these notices not proof of their services upon the claimant. The Management has also not stated that when the notices were sent to the claimant.
49. The claimant in his reply dated 01.02.2015 has stated that it was received on 27.04.2018 and there is no evidence produced on behalf of the Management to rebut it. In that case, the claimant had time to file his reply till 03.05.2018, however, the Management has passed the order of termination before the expiry of the time to give reply LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 28/39which is clear violation of principle of natural justice. It also shows Management had made up their mind to terminate the services of the claimant what ever may be the reason given by her in reply. Besides the perusal of the reply reveals that the claimant had mentioned about being on protest along with other coworkers. The management without taking into consideration reply had dismissed the claimant from duty vide order dated 02.05.2018 Ex.WW1/7 . Moreover, filing of the reply with in prescribe period shows intention of the claimant to continue with his employment. The contents of it also does not any intention on the part of the claimant that he wants to abandon his job or has no intention to continue the employer employee relationship between the parties. Further appeal Ex.WW1/A dated 09.05.2018 has been filed wherein the claimant had challenged order of his dismissal. He had further taken action under the ID Act and filed conciliation proceedings. Though they were unsuccessful and a reference has been made to the court. This conduct of the claimant clearly reveals that there is no intention on the part of the claimant to abandoned his job. He had continuously tried to get the order of the termination set aside. The conduct of his, in filling reply to show case notice in prescribed time, filling appeal within specific period, filling reminder to the appeals, issuing notice to the management to set aside the order of dismissal, taking proceeding under the ID Act, raising industrial dispute clearly shows LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 29/39that there is no animus on the part of the claimant to abandon his job.
50. The claimant has clearly informed the Management that he is taking part in the Strike and the Management is aware of it. The Management has held that participation in strike amount to abandonment which is clearly against the law laid down by the Hon'ble Supreme Court. The Management has not produced any evidence to show that the strike in which the claimant participated was not peaceful. Thus, the management has not been able to prove that the claimant had abandoned his job, hence, this issue is decided in favour of the claimant and against the management.
ISSUE NO.3:
51. The onus to prove this issue was upon the claimant. As per my finding on issue no.2, it has been held that there is no abandonment on the part of the claimant. The management has terminated the job of the claimant vide order dated 02.05.2018 (Ex. DW1/4) on the ground of abandonment. However, during final arguments, management had also raised another objection about the illegality of the strike conducted by the workers. It is also relevant to mention that the claimant had filed the appeal against the termination order and the same was decided vide order dated LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 30/3912.07.2019 and in the said order also, the ground taken by the management is regarding abandonment of the employment and not regarding the illegality of the strike, which was done by the workers. It was submitted on behalf of the management that the claimant along with coworkers went on strike on 16.04.2018, however, notice of the strike was given only on 15.04.2018, as the management is a public utility service and as per Section 22 of the ID Act, notice of 14 days is required in case of public utility service. In this case, the worker had given notice only one day prior to the date of strike i.e., on 15.04.2018 while the strike had started on 16.04.2018, in that case the strike done by the worker was illegal. Before proceeding further it is relevant to have Section 22 of the ID Act before us.
"22. Prohibition of strikes and lockouts.--(1) No person employed in a public utility service shall go on strike in breach of contract--
(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. ............."
52. Section 22 of the ID Act provides that 14 days notice is required to be given, in case of person employed in public utility LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 31/39service if that person wishes to go on a strike. The public utility service is defined under Section 2(n) of the ID Act. it states as follows:
" (n) "public utility service" means--
(i).......
(ii) .......
(iii).............
(iv)..........
(v).......
(vi) any industry specified in the [First Schedule] which the apropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification:
Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension;
53. Section 2(n) states that the appropriate government may declare an industry to be a public utility service by notifying it under first schedule of ID Act. Perusal of the schedule 1 reveals that the banking has been declared as Public Utility Services. The Management is engaged in the business of banking, so it is a Public Utility Services under the provisions of the ID Act. Section 22, of the ID Act requires a notice of at least 14 days be given before the LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 32/39strike. However, in this case 14 days notice has not been given by the claimant. Section 24 of the ID Act provides that strike commenced in contravention of Section 22 is illegal.
54. Section 26 deals with penalty for illegal strikes and lockouts, the same is reproduced as below:
"26. Penalty for illegal strikes and lockouts.--(1) Any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both. (2) Any employer who commences, continues, or otherwise acts in furtherance of a lockout which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both."
55. Perusal of Section 26 reveals that in case there is illegal strike by workman, the same is punishable with imprisonment or fine. However, Section does not provide that in case of illegal strike, employee can be dismissed from services without holding an inquiry. It is also relevant here to have the judgment of the Hon'ble Supreme Court titled as India General Navigation and Rly. Co. Ltd. v. Workmen, 1959 SCC OnLine SC 45. In this case, workers who were working in a company which was a public utility service LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 33/39went on a strike. They were dismissed from service which was challenged and the Court had made the following observations, which are relevant and they are reproduced herein below.
"25. In order to find out which of the workmen, who had participated in the illegal strike, belong to one of the two categories of strikers who may, for the sake of convenience, be classified as (1) peaceful strikers, and (2) violent strikers, we have to enquire into the part played by them. That can only be done if a regular inquiry has been held, after furnishing a chargesheet to each one of the workmen sought to be dealt with, for his participation in the strike. Both the types of workmen may have been equally guilty of participation in the illegal strike, but it is manifest that both are not liable to the same kind of punishment. We have, therefore, to look into the nature of the inquiry alleged to have been held by or on behalf of the appellants."
56. Perusal of the judgment reveals that even in case if the strike held to be illegal, the departmental inquiry has to be conducted before passing the order of the dismissal of the employee. In this case, the management had not conducted any departmental inquiry before terminating the services of the claimant. Moreover, the order of dismissal dated 02.05.2018 as well as order dismissing the appeal dated 12.07.2019 reveals that the claimant was dismissed on the ground of abandonment of services and no ground about the illegality of the strike. The Management has also not claimed that LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 34/39they have complied with Section 25F of the ID Act. Hence, the dismissal of the claimant is illegal and hence, this issue is decided in favour of the claimant.
RELIEF:
57. The workman in this case has prayed for reinstatement and back wages with all consequential benefits. It was argued during final arguments that the claimant was working with the management as a Clerk/Cashier and his last drawn wages were Rs.34,699/ per month at the time of termination of employment. The AR for the workman has relied upon the judgment of Hon'ble supreme court tittled as Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 to press for the relief of reinstatement and full back wages. It is further argued that in para 38 the Hon'ble court has stated that in case of wrongful termination, reinstatement is the normal rule. The relevant part of the Judgment is reproduced as follows:
"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule."
58. The above mentioned Judgment of the Hon'ble Court was LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 35/39discussed by the Hon'ble Delhi High Court in case tittled as Mohit Jain v. Thomas Cook (India) Limited 2014 SCC OnLine Del 7322. Wherein the Court has made following observation. The same are as follows "3. In the case of Deepali Gundu Surwase v.Kranti Junior Adhyapak Mahavidyala (D.ED.), (2013) 10 SCC 324, the Hon'ble Supreme Court has observed that in a very nature of things there cannot be a strait jacket formula for awarding relief of reinstatement with back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal."
59. Thus, the grant of relief of reinstatement and back wages has to be given by taking into account the facts of each case. As far the relief of reinstatement is concerned, the termination of the claimant is illegal. The claimant is working since 2001, he is admittedly permanent employee of the bank, he is getting a handsome amount as salary along with other perks from the Management. His job also provide him opportunity to advance in carrier. The Job which the claimant is having with the Management cannot be easily found in the Job Market. Keeping in view these facts, he is entitled to relief of reinstatement.
60. As regards the back wages, the law is settled by the Hon'ble Supreme Court of India in case of UP State Brassware Corporation LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 36/39Ltd. vs. Uday Narain Pandey, JT 2005 (10) SC 344, wherein it has been held :
"The Industrial Courts while adjudicating on disputes between the management and the workman, therefore, must taken such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial disputes act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. The Court, therefore, emphasised that while granting relief, application of the mind on the part of the Industrial Court is imperative. payment of full back wages, therefore, cannot be the natural consequence."
61. The claimant has also claimed the relief of full back wages. It has come on record that the claimant had went on strike which was illegal and the Hon'ble supreme court in case titled as Syndicate Bank v. K. Umesh Nayak, (1994) 5 SCC 572, while dealing with the entitlement of wages for the period of strike had observed as follows:
"25. We, therefore, hold endorsing the view taken in T.S. Kelawala[(1990) 4 SCC 744 : 1991 SCC (L&S) 170 :
LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..Page 37/39
(1991) 15 ATC 747] that the workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act."
62. As held above, the worker is not entitled for the wages for the period of strike. That can be claimed if the strike is legal and justified. But herein the strike is illegal and it is the trigger for the subsequent acts which resulted in this industrial dispute. On the other hand, the Management has dismissed the worker from employment on the ground of abandonment which it has failed to prove. Thus keeping into account all these aspect, Award is passed in favour of the claimant with the following relief: The claimant is granted 50% of the back wages along with consequential benefits and also reinstatement of his job. The said order is directed to be complied within one month of the publication of the award by the appropriate government.
63. Present claim of the claimant is disposed of accordingly. A copy of this order be sent to the Competent Authority for publication and compliance as per rules.
LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
Page 38/3964. File be consigned to record room.
Digitally signed ARUN by ARUN GOEL
Date:
Announced in open court GOEL 2024.04.06
16:14:27 +0530
on Dated: 06.04.2024 (Arun Goel)
Presiding Officer, Labour Court X
Rouse Avenue Courts
New Delhi: 06.04.2024
LIR No. 2540/19 Vipin Jain vs. M/s. Jain Co-operative Bank Ltd..
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