Allahabad High Court
Mita India Private Limited vs State Of U.P. And 2 Others on 8 April, 2022
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 68 Case :- WRIT - C No. - 15344 of 2019 Petitioner :- Mita India Private Limited Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Diptiman Singh Counsel for Respondent :- C.S.C.,Alok Kumar Srivastava Hon'ble Ajay Bhanot,J.
1. By the impugned award dated 16.01.2019 the labour court has allowed the industrial reference in favour of the workman by holding that the termination of the respondent workman's services on 08.09.2011 were illegal. Consequential reliefs of reinstatement with full backwages have also been granted.
2. The labour court in the impugned award has found that the services of respondent workman were terminated without holding a disciplinary enquiry. Various communications sent by the employer to the workman to rejoin duties were disbelieved on the foot that they do not reflect a bona fide intent to recall the workman to duty.
3. Sri Diptiman Singh, learned counsel for the petitioner submits that the evidence in the record established that the workman was given ample opportunity to rejoin his duties but he failed to do so. The workman had abandoned his service. Petitioner had rightly invoked the applicable standing order holding the field which was not considered by the labour court. No departmental enquiry was liable to held in the facts of this case and the relevant standing orders. The labour court returned perverse findings on the evidence lead by the petitioner.
4. Sri Alok Kumar Srivastava, learned counsel for respondent workman contends that the services of the workman were terminated without enquiry. The respondent workman had not abandoned his service. He made several efforts to rejoin his duties but was not allowed to do so by the employer. The termination of the respondent workman was in violation of principles of natural justice was rightly set aside by the court below.
5. Heard learned counsel for the parties.
6. Briefly put the facts are these. The respondent workman had stopped attending office after an incident in the establishment. The employer sent communications asking the workman to rejoin duties, but to no avail. The petitioner employer inferred abandonment of duties by the workman and after invoking the relevant standing order struck him off the roles of employees.
7. The questions which arise for consideration are:
(a) What constitutes abandonment of service by a workman?
(b) Whether abandonment of service can be established against a workman only after holding a regular domestic enquiry?
8. Abandonment of service is an act where the employer finds that a workman by prolonged and unauthorized absence from duty has abandoned his service. The employer employee relationship stands severed since the workman has failed to rejoin duties despite communications by the employer to do so. The inference of the employer regarding abandonment of duty by the employee has to be deduced from the conduct of the employee and requires to be supported by credible materials in the record.
9. The prerequisite conditions for drawing an inference that the workman has abandoned his duties are these. The workman is continuously and unauthorizedly absent from duties. The period of continuous absence may vary from case to case. However it cannot be an inordinately short period. The period of such absence may also be prescribed in the standing order. Secondly the employer should recall the workman and give him an opportunity to resume his duties. Even after receipt of such communications the workman fails to rejoin duties. Thirdly, continuance of such employee on the rolls would not be in the best interest of the establishment. Upon satisfaction of the said conditions precedent the employer may conclude that the employee has abandoned his duties. The employer can then strike the employee off the roles of the establishment and sever the employer employee relationship. In such cases a regular domestic enquiry is not required. However, there is no abandonment of duties if the workman was prevented by the employer from joining his duties.
10. It needs to be seen whether in the facts of this case the aforesaid ingredients are established or not.
11. It is admitted between the parties that on 07.09.2011 the workman had an altercation with another employee one Ganesh Yadav and had allegedly assaulted the latter. The said Ganesh Yadav had also registered FIR against the workman. Thereafter w.e.f. 08.09.2011 the workman did not attend his duties and continuously remained absent. The employer sent various communications to the workman on 29.03.2012 and 25.04.2012 asking him to rejoin his duties. The aforesaid communications have been marked as exhibits and were proved by the petitioner before the labour court. The workman had received the said communications. The aforesaid letters clearly disclose the efforts of employer to recall the workman and enable him to rejoin his duties. But the same were disbelieved by the labour court solely on the foot that they do not reflect bona fide intent. I am afraid the finding is perverse. The contents of the aforesaid letters duly proved before the labour court establish the bonafide intention of an overindulgent employer recalling the long absent employee and notice him to rejoin duties. Admittedly the respondent workman did not respond to the aforesaid communications and failed to rejoin his duties despite notice. He was not prevented by the employer from joining his duty. The conduct of the employer cannot be faulted.
12. Several other corroborative evidences support the conclusion of the employer in regard to the abandonment by the workman and the decision made to strike the workman off the rolls. The incident on 07.09.2011 is admitted between the parties. The respondent workman had also tendered a resignation letter after the incident. The resignation letter was disbelieved by the labour court in a perverse manner. The labour court ought to have examined and compared the signatures of the workman on contemporaneous documents with that on the resignation letter. It failed to do so. It is well established that the workman was continuously absent from duty from 08.09.2011 till the standing order was invoked against him in the aftermath of the communication dated 25.04.2012.
13. The workman had on his part submitted that he had made various attempts to rejoin duties but was denied entry by the employer. The pleadings and evidences tendered by the workman do not support his case. The workman on his own admission made the first communication to rejoin duties highly belatedly on 27.03.2012.
14. The said communication of the workman only demonstrates that the absence of the workman for prolonged period with effect from 08.09.2011 was completely unjustified. The communication dated 27.03.2012 of the workman and his statement before the labour court are self-serving and devoid of bonafide intentions. They are an afterthought and only intended to post fact justify the indefensible conduct of the workman. The witness introduced by the workman in his support was his real brother who merely reiterated the stand of the respondent workman. The witness does not improve the credit of the workman's case. No material in the record has been brought to the notice of the Court that the workman had made genuine efforts to rejoin his duties but was prevented by the employer.
15. The conditions precedent for inferring of abandonment of service were thus fully satisfied.
16. In light of the above facts the employer lawfully invoked clause 21 of the certified standing order against the workman and legitimately inferred that the workman had abandoned his service. The standing order are extracted hereunder:
"21) ABANDONMENT OF EMPLOYMENT In the event of a workman remaining absent from duty without permission, continuously for a period of 8 days including weekly holidays & other holidays during the period, he shall be deemed to have voluntary abandoned his service and accordingly his name shall be struck off from the Muster Rolls of the company"
17. The services of the workman were terminated in adherence to the standing order.
18. There is a distinction between the abandonment of services and unauthorized absence from duty which is a misconduct. In the latter case the employee/workman is charged with unauthorised absence from duty and the employer has to hold a domestic enquiry. However when the conditions prerequisite for finding that the workman had abandoned his service are established no such enquiry is necessary. Principles of natural justice cannot be cast in a straight jacket formula and vary from case to case. The principles of natural justice in labour jurisprudence are applied to ensure transparency and fairness in the employer and employee dealings which in turn promote industrial peace.
19. The labour court erred in law by failing to observe the distinction between abandonment of service and the misconduct of unauthorised absence from duty. The labour court in the impugned award illegally found for the workman of the solely on footing that no domestic enquiry was held. This was case of abandonment of service and did not warrant a regular domestic enquiry.
20. At this stage it would be apposite to fortify the narrative with authorities in point.
21. The clause in service conditions which provided for loss of lien of an employee on his post for remaining unauthorizedly absent for more than 8 days arose for consideration before the Supreme Court in Hindustan Paper Corporation Vs. Purnendu Chakrobarty 1 and others. In the facts of the aforesaid case the workman remained absent unauthorizedly for more than 8 consecutive days.
22. The application for grant of medical leave submitted by the workman were not supported by medical certificate and hence his leave was not sanctioned. The workman was noticed as to why the period be not treated as one unauthorized absence. The reply of the workman was found to be bald and Rule 23 (vi) E was invoked out against him.
23. Negating the argument that the notice by the employer did not fulfil the requirements of natural justice, it was held in Hindustan Paper Corporation (supra) as under :
"15. We have extracted Rule 23 in full. The explanation to the Rule specifically states that certain items enumerated thereunder shall not be treated as a penalty at all within the meaning of Rule 23. For our case the relevant sub-clause is (vi) (E) which says that proceeding on leave without prior sanction and remaining unauthorizedly absent for more than 8 consecutive days; and/ or subsequently extended for more than 8 consecutive days; and/ or overstaying his sanctioned leave beyond the period originally granted or subsequently extended for more than 8 consecutive days would result in loss of lien of the appointment of the employee. In this case we have seen that the first respondent had proceeded on leave without prior sanction and remained unauthorisedly absent for more than 6 months consecutively which obliged the appellant-Corporation to issue communication tot he first respondent calling upon him to explain. Unfortunately, the first respondent, for reasons best known to him, has not availed himself of the opportunity as seen earlier but replied in half-hearted way which resulted in the impugned order. Therefore, under the circumstances, it cannot be said that the principles of natural justice have not been complied with or the circumstances required any enquiry as contemplated under Rule 25."
24. The requirement of holding regular departmental enquiry in case of a workman who had absented himself from duties for a period of more than 30 days and failed to give sufficient explanation despite being noticed was examined in Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association and another2. Upholding the validity of the action of the Bank in applying the clause 16 of the bipartite statement by noticing the employee and not holding regular departmental enquiry, the position of law was propounded thus:
"14. In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from the work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice standing therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period Bank passed orders that Dayananda had voluntarily retired from the service of the Bank.
17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did not report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.
25. Application of the bipartite settlement of the Bank when a workman absented himself from duty was in issue in Viveka Nand Sethi Vs. Chairman, J & K Bank Ltd and Others3. The need for a full-fledged departmental enquiry was waived, in the wake of service of notice and inadequate reply of the workman by holding:
"14. The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either: (1) report for duties within thirty days;(2) given his explanation for hi absence satisfying the management that he has not taken any employment or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to hereinbefore, the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence satisfying the management that he has not taken up any other employment or avocation and that he has not intention of not joining his duties.
17. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bonafide act on the part of workman. The Bank, as noticed hereinbefore, in response to the lawyer's notice categorically stated that the workman had been carrying on some business elsewhere.
18. We cannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the bank from invoking clause (2) of the bipartite settlement.
19. It may be true that in a case of this nature, the principles of natural justice where required to be complied wit but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked to do so, in our considered view, amounts to sufficient compliance of the requirement of the principles of natural justice."
26. A similarly worded standing order regarding abandonment of service and need for holding a domestic enquiry was interpreted by the Supreme Court in Buckingham and Carnatic C. Ltd Vs. Venkatiah4:
"5. .......Let us first examine Standing Order No. 8(ii) before proceeding any further. The said Standing Order reads thus:
"Absent without Leave : Any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the Company's service without notice thereby terminating his contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.
Any employee leaving the Company's service in this manner shall have no claim for re-employment in the Mills.
But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for each period as the employee is eligible with the permissible allowances."
This Standing Order is a part of the certified Standing Order with had been revised by an arbitration award between the parties in 1957. The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has terminated his contract of service. The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service. The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service. It is true 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 an employee without adequate evidence in that behalf. But where parties agree upon the terms and conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment.
6. The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and if his explanation is found to be satisfactory by the management, his absence will be converted into leave without pay or dearness allowance. Now, this clause is, in substance a proviso to its first part. Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance. This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory by the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end. With the remaining part of the said Standing Order we are not concerned in this appeal.
7. It is true that absence without leave for eight consecutive days is also treated as misconduct under clause 13 (f) of the Standing Orders. The said clause refers to be said absence and habitual absence without leave. In other words, the position under the Standing orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to be penalties awardable for misconduct after due enquiry is held as required by the relevant Standing Order. The fact that the same conduct is dealt with in two different Standing Order cannot affect the applicability of SO 8(ii) to the present case. It is not as if the appellant is bound to treat Venkatiah's absence as constituting misconduct under SO 13 (f) and proceeed to hold an enquiry against him before terminating his services. Dismissal for misconduct as defined under SO 13 may perhaps have different and more serious consequences from the termination of service resulting from SO 8(ii). However that may be, if SO 8(ii) is applicable, it would be no answer to the appellant's case under SO 8(ii) to say that SO 13 (f) is attracted. The position is not seriously in dispute."
27. This Court in Moti Vs. State of U.P5 construed the distinction between abandonment of service and termination of service by holdings:
"14. The submission of the learned counsel for the petitioner lacks merit, Fundamental Rule 18 is applicable in the facts of the instant case. It is not the case of the petitioner that petitioner came to be removed from service for overstayal of leave until his retirement on attaining the age of superannuation. No order was passed by the respondent under Fundamental Rule 18 dispensing with the services of the petitioner. In the instant case, the petitioner abandoned his service on his own in 1985 and thereafter, never returned or approached the authorities to resume duty.
15. The act of abandonment of service was voluntary on the part of the petitioner. The respondents had not terminated the service of the petitioner under the Rules, for his prolonged absence, rather, the petitioner ceased to be in service on his own choice in terms of Fundamental Rule 18 and not due to any punitive action by the employer."
28. The material before the employer was credible and the conclusions of the employer were reasonable. The employer adopted a just and lawful procedure before ending the employer employee relationship on grounds of abandonment of service by the latter. The labour court neglected to consider the adherence of the employer to Standing Order No.21, which was applicable to the facts of this case. There was no requirement of a regular domestic enquiry. Non application of mind by the labour court on these critical aspects vitiate the impugned order. Findings of the labour court on relevant facts are perverse as seen earlier.
29. The employee long absent and not interested in rejoining his duties. Indefinite continuance of such an employee on the rolls of the establishment will only instigate industrial unrest and not foster industrial peace.
30. In the wake of preceding discussion the findings of the labour court in the impugned award are perverse and illegal.
31. The award dated 16.01.2019 is liable to be set aside and is set aside.
32. Before parting one fact needs to be recorded. The petitioner employer to show his fairness had made an offer to the workman to join on an equivalent post at its unit in Devas. The post which the respondent workman was working before he abandoned is not vacant. Learned counsel for the workman Shri Alok Kumar Srivastava, on the basis of instructions submits that the workman has declined the aforesaid offer.
33. The writ petition is allowed.
Order Date :-08/04/2022 Nadeem