Delhi District Court
Between vs The on 17 May, 2007
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 286/06
BETWEEN
The Workman
Sh. Man Singh S/o Late Sh. Het Ram
R/o N-77, B-193, Sawan Park, Ashok Vihar,
Delhi- 110052.
AND
The Management of
M/s Macro Piston & Rings Pvt. Ltd.
B-69/1, Wazirpur Indl. Area,
Delhi- 110052.
AWARD
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F.24(3404)/2001-Lab./27020-24 dt. 27.11.2001 referred the dispute for adjudication between the Management of M/s Macro Piston & Rings Pvt. Ltd. and its workman Sh. Man Singh in the following terms of reference:-
"Whether the services of Sh. Man Singh S/o Late Sh. Het Ram 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 existing laws/ Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. The workman has filed statement of claim stating therein that he has been employed with the management since January 1996 as Mistry and his last drawn salary was Rs. 2207/- per month. The workman was working :2: sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. On 03.09.1998 while workman was working on the machine of the management, the right hand of the workman was amputed due to defect in the machine of the management. The workman was taken to ESI hospital by the management and the workman remained under treatment from 03.02.1998 to 12.03.1999. The workman was fit for duty on 12.03.1999 and on the same day he went to management but the management did not permit the workman to perform the duty and the management also did not pay wages for the period of medical treatment. The workman came to know that he was dismissed from service when was he was under medical treatment and the workman sent notice of demand to the management by UPC on 18.09.1999 and by registered post on 20.09.1999 but the workman was not reinstated. The workman filed an application before the Conciliation Officer and on the directions of Conciliation Officer workman joined duty with the management when the management agreed to pay wages for the period of unemployment. The workman was permitted for duty from 28.02.2000 to 31.03.2000 but the management dismissed him on 31.3.2000 and the management has not paid wages for the month of March 2000 and salary/wages for the period of unemployment. The workman again sent a demand notice dt. 26.12.2000 to the management but the management did not give any satisfactory reply. It is stated that the workman has been terminated from his services illegally. The workman is unemployed since the date of termination of his services. It is stated that conciliation was :3: not arrived due to non-cooperative attitude of management. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management and the management has filed WS and has contested the same. In the WS it is stated that the workman has abandoned his services by not resuming his duties w.e.f. 08.04.2000 without any intimation or information to the management and the management had never terminated the services of workman. The workman had raised a false and frivolous industrial dispute against the management before Conciliation Officer and the management informed the Conciliation Officer that the management has not terminated the services of workman and the workman was directed to resume duty immediately and as per directions of Conciliation Officer workman joined his duty and he again absented from his duty w.e.f. 08.04.2000 and the workman has not collected dues from 01.03.2000 to 31.03.2000 which was sent to him vide cheque dt. 18.04.2000 and vide letter dt. 18.04.2000 workman was directed to resume his duties. It is stated that the workman met with an accident on 03.09.1998 and he was under treatment with ESIC and was entitled for benefits under the said Act as he was covered under the provisions of Employees State Insurance Act while in service of management but in spite of the same workman insisted upon the workman to pay him wages for the period he did not work with the management and the management did not agree for the same. Workman filed a criminal case :4: against the management and also a civil suit in the court of Sh. O. P. Saini, Judge, ESIC Court, Tis Hazari, Delhi and the management was compelled to pay compensation of a sum of Rs.45000/- to the workman in case under Section 287, 338 IPC on 07.04.2003 in the court of Sh. S. K. Aggarwal, MM Tis Hazari, Delhi. The workman has got disability benefit from the department of ESIC as per the loss of his earning capacity and in the petition which was filed in the court of Sh. O. P. Saini, Judge, ESIC Court, the workman has himself stated that he lost his right hand and he was Mistry in which job both hands are essential for doing the said job and he is not able to do his job and he is entitled to 100%of earning capacity. The claim of the workman is not maintainable as ESI department has already given the benefits as per law. It is stated that initially workman was employed w.e.f. 17.11.1997 as semi- skilled worker @75/- per day for a period of six month vide appointment letter dt. 17.11.1997. Workman submitted medical certificate dt. 12.03.1999 in the office of management. It is denied that the workman reported to the management alongwith application to resume his duties on 12.03.1999 and the management did not allow the workman to resume the duty as alleged. It is also denied that the workman was dismissed from the service by the management. It is stated that the workman was directed to resume duty by the Conciliation Officer and workman after performing his duties again preferred to absent from his duties. It is denied that the services of workman were terminated illegally as alleged. It is stated that the workman is already getting benefits of losing his earning capacity from the department of ESIC :5: and moreover management has never refused him duties but the workman was interested for his wages for the period of medical treatment. It is stated that workman is not entitled to any relief.
4. The workman has filed rejoinder to the WS of management. In the rejoinder workman has reiterated the contents of statement of claim and has controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my ld. Predecessor on 15.09.2004:
1. Whether the workman himself abandoned his services by not resuming his duty w.e.f. 08.04.2000 without any intimation and information to the management as pleaded in WS? If so, its effect?
OPM.
2. Whether the claim of the workman is not maintainable on the plea taken in P.O. No. 3 of the WS? OPM.
3. As per terms of reference.
6. To prove his case workman examined himself as WW1 and in support of its case managements examined Sh. Anil Rohtagi, Director as MW1.
8. I have heard authorised representatives for both the parties and carefully perused record. My findings on specific issues are as under: ISSUE NO. 1
9. The plea of the workman is that he met with an accident on 03.09.1998 while working for the management due to defect in the machine and workman was fit for duty on 12.03.1999 and on the same day he went to :6: management to report for duty, but he was not assigned duties and the management also did not pay wages for the period of medical treatment from 03.09.1998 to 12.03.1999 and the workman filed an application before the Conciliation Officer and on the directions of the Conciliation Officer, the workman went for duty to the management from 28.02.2000 and the workman worked till 31.03.2000, but his services were terminated on 31.03.2000 and earned wages of the workman for the month of March 2000 and for the period during which he had remained unemployed were not paid. In the W.S. the management has stated that the workman had raised a false and frivolous industrial dispute against the management before the Conciliation Office and the management informed the Conciliation Officer that the management has not terminated the service of the workman and the workman was directed to resume the duty and thereafter the workman joined the duty, but the workman again absented from duty w.e.f. 08.04.2000 without any intimation and information to the management and the workman has not collected his earned wages from 01.03.2000 to 31.03.2000 and the same were sent to him by cheque dt.18.04.2000 and by the letter dt. 18.04.2000 the workman was directed to resume duty, but the workman has not resumed the duty.
10. The contention of AR for the management is that the workman was never denied duty by the management and the workman has been demanding wages for the period during which he was under medical treatment and as he was not entitled for the same hence the management :7: did not make the payment of the same and on that account the workman did not perform duty of his own.
11. The contract of service comes to an end where the workman abandons his job but 'abandonment of service' has not been defined in the Act. Etymologically, the work ' abandonment' has been explained to mean ' to leave completely and finally' ; forsake utterly; to relinquish, to renounce, to give up all concern in something; relinquishment of an interest or claim; abandonment when used in relation to an office means 'voluntary relinquishment'. In order to constitute an 'abandonment', therefore, there must be a total or complete giving up of the duties, so as to indicate an intention not to resume the same. Abandonment must be total and under circumstances which clearly indicate an absolute relinquishment. A failure to perform the duties pertaining to an office, must be with an actual or imputed, intention on the part of the officer to abandon and relinquish the office'.
12. In Buckingham & Carnatic Co. Ltd. v. Venkatayya (1963) 2 LLJ 638 Hon'ble Supreme Court held that 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.
13. In GT Lad v. Chemicals and Fibres of India 1979 Lab IC 290, Hon'ble Supreme Court held that:
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 :8: each case. It was further held that a temporary absence from duty cannot be treated as abandonment, but it must be a permanent break intended by the workman.
14. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, Jodhpur and others, 2001 LLR 1071 Hon'ble Court held:
There is distinction between retrenchment and abandonment from service. The termination contemplates an 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".
15. In order to prove his case the workman examined himself as WW1 and adduced evidence by way of affidavit Ex. WW1/A. In para 5 of the statement of claim the workman has stated that on 12.03.1999 he went to the management, but the management did not permit the workman to perform duty and the management also did not pay the wages for the period of medical treatment. In para 7 of the statement of claim the workman has stated that on the directions of Conciliation Officer workman joined duty of the management when the management agreed to pay wages for the period of the unemployment. In para 8 of affidavit Ex. WW1/A the workman has stated that he joined duty of the management on the directions of the Conciliation :9: Officer from 28.02.2000 to 31.3.2000 but the management neither paid earned wages nor paid wages for unemployment period. The contention of the management is that the workman was interested in the wages for the period during which he has remained under medical treatment, but the management was not liable to make the payment of the same as the workman was provided ESI facility and the workman was getting wages for the said period from the ESI department and as the management did not make the payment of wages for the period during which the workman had remained under medical treatment, the workman left the services of the management of his own.
16. The plea of the management is that the workman was only interested in the money from the management for the period during which he has remained under medical treatment and he was not interested in the job of the management, hence the workman voluntary abandoned the services of the management. MW1 stated in the cross-examination that the workman had filed claim before the Conciliation Officer and the Conciliation Officer had sent the workman to management for work, thereafter the workman worked with the management for about 35/36 days. In the cross-examination of MW1 the workman has given a suggestion to the effect that the Conciliation Officer had sent the workman for work with the understanding that the workman will be paid wages for intervening period of his unemployment and the management had agreed for the same and thereafter management declined to make the payment of the same.
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17. In para 7 of the statement of claim the workman has stated that the management had agreed to pay wages for the unemployment period before the Conciliation Officer and in para 8 of the affidavit Ex. WW1/A the workman has stated that the management had not paid wages for the unemployment period. The workman/WW1 was put a question in the cross- examination by the management to the effect that w.e.f. 08.04.2000 he (workman) has voluntarily absented from duty to which workman replied that on 08.04.2000 there was a date before Conciliation Officer, Nimri Colony where management refused to pay him earned wages for one month and the management had refused to give him money, hence he did not go for work. The management has taken the plea that the management had offered employment to the workman before the Conciliation Officer and the management had sent letter dt. 18.04.2000 Ex. MW1/4 to the workman thereby directing him to join the duty, but the workman has not joined the duty as he was only interested in money from the management. In his cross- examination the workman/WW1 has stated that on 08.04.2000 there was a date before Conciliation Officer, Nimri Colony where management refused to pay him earned wages for one month and the management had refused to give him money.
18. In Sonal Garments vs. Trimbak Shankar Karve-2003-LLR-5 it was held that:
Whenever the employer offers to reinstate the workman at any stage of the dispute or proceedings and if the workman does not accept the offer even without prejudice to his :11: rights and contentions, he will not be entitled to claim for reinstatement and he will be not entitled to claim any back wages from the date of such offer, conditional or unconditional.
19. In case titled as Competition Printing Press vs. Jaiprakash Singh and Another 2001-II-LLJ 1341, management attended the office of Government Labour Officer and submitted that workman himself was remaining absent and that he was never terminated from employment and he could report for work with continuity of service and the workman refused to get reinstated with continuity of service but insisted for back wages. It was held that no genuine and bonafide workman who was aggrieved by an illegal order of termination would deny the offer of reinstatement and would not readily give up the valuable job for the sake of few days back wages. Alternatively the workman could have accepted reinstatement before the Government Labour Officer and even before the Conciliation Officer praying to refer the dispute restricting to the entitlement of the back wages as he was already reinstated during the proceedings before the Government Labour Officer or the Conciliation Officer as the case may be. It was further held that in such case the workman is not entitled to reinstatement and back wages.
20. In Tirloki Nath (Shri) v. Shri Dharam Paul Arora & Anr. 2006 LLR 1043 our own Hon'ble High Court held that if a workman fails to resume duties, even when the offer is made before the Conciliation Officer as well as the Industrial Tribunal, it will be irresistibly presumed that he is no longer interested in the job and has abandoned the job of his own accord. It was :12: further held that merely that the workman has not resumed the duty because he was not entitled to have salary, would not justify his refusal since after joining he could have lodged his protest.
21. The plea of the management is that the services of the workman have not been terminated by the management and the workman voluntarily absented from duty w.e.f. 08.04.2000 and the workman did not join the duty despite offer of the duty made before the Conciliation Officer and by way of letter dt. 18.04.2000 Ex. MW1/4. The workman/WW1 stated in the cross- examination tht on 08.04.2000 there was a date before Conciliation Officer, Nimri Colony and he did not go for work as the management refused to pay him money. If the grievance of the workman is that the management has not paid his dues and he was interested in the job of the management he could have accepted the offer of the management made before the Conciliation Officer and could have joined the duty reserving his right for his legal dues as held in Sonal Garmetns vs. Trimbak Shankar Karve (Supra) & Competition Printing Press vs. Jaiprakash Singh and Another (Supra). However, the workman did not adopt this course and rather proceeded to litigate and the conduct of the workman lends support to the version of management that the workman had abandoned the employment and he never came back to report for duty even after offering the duty by the management before the Conciliation Officer also. It leads to the conclusion that the workman had abandoned the employment of the management.
22. The plea of the management is that the letter dt. 18.04.2000 Ex. :13: MW1/4 was sent to the workman by which earned wages from 01.03.2000 to 31.03.2000 were sent to him by cheque dt. 18.04.2000 and the workman was directed to report for duty, but the workman has not reported for duty in pursuance of the said letter. The workman/WW1 admitted in the cross- examination that his address is N-77, B/193, Sawan Park, Ashok Vihar, Delhi:-110052. The management has filed the postal receipt and UPC receipt by which letter dt. 18.04.2000 Ex. MW1/4 was sent to the workman and Ex. MW1/4 bears the address of the workman which was disclosed by him during his cross-examination.
23. In M/s Trina Engineering Company (P) Ltd. vs. The Secretary (Labour) & Others, 2006 LLR 51 it was held that when the letters have been sent by registered post by the Management at the recorded address of the workman as given by him, it will not be necessary for the Management to produce the postman since the despatch of letters will be deemed to be proper service of the letters even when not delivered to the workman.
24. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, Jodhpur and others (Supra) it was held that being a case of abandonment of service, no notice/enquiry is required.
25. In case Laxmi Kant v. Presiding Officer Industrial Tribunal-cum- Labour Court, Gurgaon and another (1999) 1 LLJ 224, it was held:
The Labour Court has passed a categorical finding that the management had not passed any order of termination; if there is no order of termination, passed by the employer, it is not understood as to how and why it is required to hold an :14: enquiry. The petitioner had himself abandoned the job. He is wanting to take advantage of his own wrong. There is neither equity nor law in his favour.
26. In Tej Pal v. Gopal Narain & Sons & Anr. 132 (2006) DLT 311 it was held:
A perusal of Section 2(oo) of the Act shows retrenchment means the termination of services of a workman by management. Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman were terminated. It was not the case of the workman before the Labour Court that after receiving letter of the management asking him to join duties, he had gone to join duties and was not allowed to join duties. The contention of the workman that employer was supposed to initiate an inquiry into his absence before terminating his services, is baseless because in this case employer had not terminated services. An employer who writes a letter to the workman to join duties since he was absent, cannot be said to have terminated th services of the petitioner. Only if the petitioner had not been allowed to join duties on his reporting, it could have been said that his services were terminated.
27. In view of the aforesaid discussions it is held that the workman himself absented from duty of the management w.e.f. 08.04.2000 without any information or prior sanction of leave. This issue stands answered :15: accordingly.
ISSUE NO. 2
28. In para 3 of PO of W.S. management has stated that the workman has got disability benefit from the department of ESIC as per the loss of his earning capacity and in para 13 of the petition filed by the workman in the court of Sh. O.P. Saini, Ld. Judge ESIC Court, Tis Hazari the workman has himself stated that he has lost his right hand and he was a mistri in which job both hands are essential for doing his work and after this incident he is not able to do his job as mistri and he is entitled to 100% earning capacity and ESIC Department has already given him benefit as per law and the workman cannot claim the benefits from the management and also from the ESIC department. It is to be noted that this is a reference sent by the appropriate Govt. wherein this court is adjudicate the question whether the services of the workman have been terminated illegally and/or unjustifiably by the management and if so to what some of money as monetary relief along with consequential benefits in terms of existing laws/notifications and to what other relief is he entitled. The plea of the workman is that he met with an accident while working for the management on 03.09.1998 and his right hand was amputated and after acquiring the fitness he joined the management from 28.02.2000, but the management terminated his services on 31.03.2000. The management has admitted that the workman met with an accident on 03.09.1998 and the management has stated that thereafter workman has worked with the management w.e.f. 01.03.2000 but the :16: workman absented from duty w.e.f. 08.04.2000. The management has admitted employing the workman after his accident. In the circumstances, it is not open for management to plead that after the accident the workman is not capable of performing the duty and the reference is incompetent. Moreover, by way of present reference the court is not only to give findings as to whether the workman has to be reinstated by the management, but the finding which is to be given is regarding the legality of termination of workman and if his termination is illegal, then the court is required to given findings as to what relief workman is entitled pursuant to illegal termination of his services. Hence, the objection of the management that the claim of the workman is not maintainable has no force. This issue stands answered accordingly.
ISSUE NO. 3
29. In findings of issue no. 1 above it has been held that the workman voluntarily absented from duty w.e.f. 08.04.2000 without any information or prior sanction of leave. As the workman himself had absented from the duties of the management, hence there is no question of termination of the services of the workman illegally and/or unjustifiably by the management. Consequently, the workman is not entitled to any relief. Reference stands answered accordingly. Copies of this award be sent to appropriate Govt. for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
TODAY i.e. ON 17.05.2007. ` (HARISH DUDANI)
PRESIDING OFFICER
LABOUR COURT NO. XVII
KARKARDOOMA COURTS,
DELHI
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