Delhi District Court
Shri Sant Ram vs M/S Cool Fashion on 13 February, 2014
IN THE COURT OF SHRI SANJAY SHARMA :
PRESIDING OFFICER LABOUR COURTXIX (EAST) :
KARKARDOOMA COURTS : DELHI
LIR No. 828/2011
UNIQUE CASE ID NO. 02402C0 196332009
Shri Sant Ram
S/o Shri Jangi Lal
C/o Delhi Dalit Mazdoor Vikas Sanghtan (Regd.)
CB6, Ring Road, Naraina
New Delhi - 110 028 ......Workman
Vs
M/S Cool Fashion
B44, Sitapuri Part1,
New Delhi 110045 ......Management
Date of institution : 05.10.2009
Date of reserving judgment : 04.2.2014
Date of Passing of Award : 13.2.2014
Ref. No. F.24 (37)/SWD/Lab/1694 Dt. 04.6.2009
A W A R D
The present industrial dispute between the parties was
referred by Secretary (Labour), Government of NCT of Delhi in
exercise of powers conferred by section 10(1)(c) and 12 (5) of the
Industrial Disputes Act, 1947 (hereinafter referred as 'Act'), read
LIR NO. 828/2011 Page 1 of 12
with Govt. of India, Ministry of Labour Notification No.
S11011/2/75/DK(1A), dated the 14th April, 1975 and Notification
No. F.1/31/616/Estt./2008/7458 dated 3rd March 2009, to the Labour
Court No. XIX for adjudication with the following terms of
reference:
"Whether services of Shri Santram
S/o Shri Jangi Lal have been illegally
and/or unjustifiably terminated by
the Management and if yes, to what
relief is he entitled?"
2. On service of notice of reference, the workman filed
statement of claim with the prayer for passing an award in his
favour and against the management with direction to the
management to reinstate him back in service with full back wages
and continuity in service and other consequential benefits. He
alleged that he joined the management on 01.4.1997 as Tailor and
his last drawn monthly wages were Rs.3300/ and had a clean
service record. He alleged that no appointment letter was issued to
him at any time but his signatures were obtained on appointment
letter without giving its copy to him. It has also been alleged that
the management used to take work of 12 to 14 hours from him
without payment of any overtime. He further alleged that on
LIR NO. 828/2011 Page 2 of 12
16.5.2008 his services were terminated illegally when he demanded
some documents which were to be submitted before the ESIC for
getting the medical benefits and his earned wages for the months of
March and April and 16 days of May 2008 were also withheld. He
sent a demand notice dated 25.2.2009 through the Union to the
management and conciliation proceedings had started but the
management did not appear there. It was further submitted that he
is unemployed since the date of his termination and did not get any
job despite efforts.
3. The management has contested the claim and had
filed detailed written statement alleging therein that the
management never terminated the services of the workman and that
he himself stopped attending his duty w.e.f. 11.5.2008 and thus
abandoned the job and that he failed to resume his duty despite
sending Shri Ajay Thakur - Store Keeper to his house. Other
allegations made in the claim were specifically and categorically
denied.
4. Workman filed the rejoinder where in he reinstated
his claim and countered the allegations made by the management.
On the basis of the pleadings of the parties, following issues were
LIR NO. 828/2011 Page 3 of 12
framed on 08.10.2010:
1. Whether the services of the workman has been terminated
illegally? OPW
2. Whether the workman has abandoned the services? OPM
3. Relief.
5. The workman led his evidence and examined himself
as WW1. He also examined one Bablu Singh as WW2 but his cross
examination was never completed as the witness never turned up
further to depose in the Court. Hence, his testimony cannot be read
in evidence. Ld. AR for workman closed the workman evidence on
12.4.2013. The management examined Shri Chandra Bhan from
ESIC Office as MW1, Shri LR Meena from PF Department as
MW2, Shri Lalit Kumar from Union Bank of India as MW3 and
Shri Ramphal from EPF Office as MW4.
6. I have heard Shri Ajit Singh Ld. AR for workman and
Shri Sanjay Aggarwal Ld. AR for the management and have
carefully gone through the record.
My issue wise findings are as under:
ISSUE NO. 2:
7. The onus to prove this issue was upon the
LIR NO. 828/2011 Page 4 of 12
management. Though, no witness was examined by the
management from the company but instead four official
witnesses were examined.
8. Ld. AR for the workman relied upon the judgment in
GT Lad vs Chemical Fibers of India Ltd. 1979(38) FLR 95
SC, wherein it was held that a mere absence for a month or
so cannot be regarded as abandonment. It was further held
that abandonment shall mean total relinquishment from
the side of the workman to join the duty. Mere temporary
absence could not be regarded as abandonment. It was also
held that voluntary abandonment is a question of fact
which is to be determined in the light of surrounding
circumstances.
9. Similar views were expressed in M/s Fateh Chand vs
Presiding Officer Labour Court & Anr. 2012 LLR 468
Delhi by the Hon'ble High Court of Delhi while laying
distinction between abandonment and absenteeism. It was
held that mere continuous absenteeism does not mean
abandonment. It was observed that voluntarily
relinquishment of one's service with intention of not
resuming duty is abandonment while casual absence from
LIR NO. 828/2011 Page 5 of 12
duty is different. It was held that absenteeism for a
continuous period does not mean that the employee has
abandoned his service. The management has to bring on
record sufficient material to show that the employee has
abandoned the service and abandonment cannot be
attributed to the employee without there being sufficient
evidence. On failure to report for duty, the management has
to call upon the employee and if he refuses to report, then
an enquiry is required to be ordered against him and
accordingly action taken. In the absence of anything placed
on record by the petitioner management, no presumption
against the respondent can be drawn.
10. Thus, abandonment has to be gathered from the circumstances and it is not necessary that in every case an enquiry is necessary if it is gathered from the circumstances that the workman had voluntarily abandoned the job.
11. The workman alleged that he had joined the services of the management w.e.f. 1.4.1997 however, he could not produce any record or any evidence to that effect. Though, he examined his coworker WW2 to prove this fact but as already observed herein above, his evidence cannot be read LIR NO. 828/2011 Page 6 of 12 since he failed to make himself available for his cross examination. It was contended by Ld. AR for the workman and also deposed by the workman that he was earlier working with M/s Friends Garments but his services were transfered later on to the present management. It was also contended that both the said firms have a common management but this fact could not be proved. It is also worth mentioning that the workman in his cross examination admitted that he was getting the ESI and PF facility in the management and has also placed on record his ESI Card Ex. WW1/6, which shows his date of appointment as 1.12.2006. Hence, it cannot be accepted that he had been working with the management since 1997.
12. The workman next placed reliance upon various night passes issued by Friends Garments and Cool Fashion Ex.WW1/7 (colly.). In this respect he deposed that these passed used to be issued by the supervisor/guard and the names of those persons has mentioned on these passes were Kishan and Mukhtar. However, he admitted that Mukhtar had filed his case regarding termination showing himself to be a Tailor which is pending before this court. This means that he had no authority to sign the said passes. Both the said LIR NO. 828/2011 Page 7 of 12 companies i.e. M/s Friends Garments and the present management were having different addresses as can be gathered from these night passes. However, the workman relied upon two such passes one dated 28.10.2006 of M/s Friends Garments and another also dated 28.10.2006 of the management. It cannot be accepted that he was working for both the companies almost at the same time. Furthermore, since the original of these passes has not been produced nor the issuing authority has been examined by the workman, no authenticity can be placed upon this piece of evidence.
13. The management examined MW4 from the EPF Department, who placed on record Form 19 and Form 10C submitted by the workman for withdrawal of his Provident Fund wherein the workman has himself mentioned his date of appointment as 1.12.2006 and there had been no cross examination of this witness or on the above forms. Hence, the date of appointment of workman has to be taken as 1.12.2006.
14. The workman next alleged that he was not paid salary for the months of March, April and 16 days of May, 2008. However, when confronted with the salary register Ex.WW1/M1 in the cross examination, he admitted his LIR NO. 828/2011 Page 8 of 12 signatures at point A on the salary register for the month of May.2008 regarding receipt of salary for that month as well as for the month of March, 2008 vide Ex.WW1/M2 at point A. Though he denied his signatures on the salary register for the month of April, 2008 but a bare comparison of his signatures on the salary register for March and May, 2008 clearly show that these were his own signatures. These facts show that the workman has taken a false plea of nonpayment of his salary as aforesaid.
15. It was contended by Ld. AR for the workman that the services of the workman were terminated on 16.5.2008 whereas the management's case is that the workman stopped attending his duties w.e.f. 11.5.2008. The reason attributed by the workman for termination of his service as mentioned in the claim is that he had demanded some documents to be submitted before ESIC for medical benefits but instead of providing the documents, his services were terminated. In the demand notice Ex.WW1/1 the workman alleged that he was terminated without any previous notice and after obtaining his signatures on blank papers and also after assaulting him and threatening him. In the claim before the conciliation officer Ex.WW1/4, he alleged that he was terminated by the LIR NO. 828/2011 Page 9 of 12 management on being annoyed of his demand for providing legal facilities. As already observed, the workman has admitted in the cross examination that he was being provided ESI, PF and weekly off. Thus, it cannot be said that he was not being provided the legal facility and further, the different plea or reason given by him in different proceeding at different stage clearly show that the workman has filed a false claim.
16. It is a matter of record that vide order dated 22.7.2010, the workman was directed to join the duties with the management through the Labour Officer of the concerned area on 2.8.2010. In the cross examination he deposed that when he reported for duty on 3.8.2010, he was turned out by one Mr. Guddu@ Naimuddin who also gave beatings to him before turning him out but further deposed that he did not lodged any complain regarding this incident either before the court or to any authority which again shows that he had taken a false plea and he had no intention to join the management.
17. 2003 In Sonal Garments Vs. Trimbak Shanker Karve LLR 5 Bombay, it was held that whenever the employer offers to reinstate the workman at any stage of dispute or LIR NO. 828/2011 Page 10 of 12 proceedings and if the workman does not accepts the offer even without prejudice to his rights and contentions, he will not be entitled to claim for reinstatement and he will also not be entitled to claim any back wages from the date of such offer, conditional or unconditional.
18. In Form 19 and Form 10C Ex.MW4/1 referred to above, the workman had himself given the reason for leaving the service as 'had fight with the company so I am leaving' and has also given the date of leaving as 16.5.2008. It is also to be noted that the workman has nowhere mentioned that he ever approached the management requesting to resume duties after 16.5.2008. Admittedly, no termination letter issued to him. Even the demand notice was got issued by him after an inordinate and unexplained delay of nine months. This leaves no doubt that the workman was not terminated from the services but he himself had abandoned the job and therefore, there was no requirement of any enquiry. Furthermore, it is a settled principle of law that a person who approaches the court with unclean hands and false pleas is not entitled to any relief.
19. In view of the above discussion, issue no.2 is decided LIR NO. 828/2011 Page 11 of 12 in favour of the management and against the workman. ISSUE No. 1 :
In view of the findings returned while deciding issue no.2 above, it is clear that the services of the workman were never terminated what to say illegally. Hence, this issue is also decided in favour of the management and against the workman. ISSUE No. 3/Relief :
16. In view of the findings on the above issues, the workman is not entitled to any relief.
The reference is answered accordingly. Copies of award be sent for publication and case file be consigned to Record Room.
Announced in the open court on 13th day of February 2014 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX, KARKARDOOMA COURTS, DELHI LIR NO. 828/2011 Page 12 of 12