Delhi District Court
The National Capital Territory Of Delhi vs State Of Tamil on 16 March, 2007
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 740/06
BETWEEN
The Workmen
1. Sh. Dilip S/o Sh. Pujari Nagar,
2. Sh. Raj Bahadur,
3. Sh. Rajesh-II S/o Sh. Ram Jatan,
4. Sh. Rajendra Prasad,
5. Sh. Rajesh-I S/o Sh. Bankey Lal,
6. Sh. Jai Prakash S/o Sh. Bachha Lal and
7. Sh. Ashok Kumar Shah S/o Late Sh. Lakhan Shah.
C/o Delhi Genral Mazdoor Front,
B.K.1/33, B, Janta Flat, Shalimar Bagh,
Delhi:-110052.
AND
The Management
M/s. Nutech Appliances Co. Pvt. Ltd.,
44/15, Shahbad Daulatpur, Bawana Road,
Delhi:-110042.
AWARD
1. The National Capital Territory of Delhi, through its Secretary (Labour)
vide reference no. F.24(5003)/2000-Lab./4667-71 dt. 15.02.2001 referred the
dispute for adjudication between the Managements M/s Nutech Appliances
Co. Pvt. Ltd. and and its workmen Sh. Dilip S/o Sh. Pujari Nagar, Sh. Raj
Bahadur, Sh. Rajesh-II S/o Sh. Ram Jatan, Sh. Rajendra Prasad, Sh. Rajesh-I
S/o Sh. Bankey Lal, Sh. Jai Prakash S/o Sh. Bachha Lal and Sh. Ashok
Kumar Shah S/o Late Sh. Lakhan Shah in the following terms of reference:-
"Whether services of Sh. Dilip, Sh. Raj Bahadur, Sh.
Rajesh-II, Sh. Rajendra Prasad, Sh. Rajesh-I, Sh.
Jai Prakash and Sh. Ashok Kumar Shah have been
terminated illegally and/or unjustifiably by the
management, and if so, to what relief are they entitled
and what directions are necessary in this respect?"
contd.......
//2//
2. Workmen have filed statement of claim stating therein that they have
been employed with the management as per particulars furnished below:
S. No. Name Post Period Pay
1 Ashok Kumar Shah Mistry June, 1996 Rs.2,650/-
2 Dilip Mistry June, 1996 Rs.2,200/-
3 Rajesh-I Mistry June, 1996 Rs.1,900/-
4 Raj Bahadur Mistry May, 1995 Rs.1,800/-
5 Rajesh-II Mistry June, 1996 Rs.1,900/-
6 Rajender Prasad Mistry May, 1995 Rs.1,800/-
7 Jai Prakash Mistry June, 1996 Rs.1,900/-
It is stated that the workmen were working sincerely and diligently to the
satisfaction of the management and never gave any chance of complaint to
the management. It is stated that the management was not maintaining the
attendance register and the management was also not providing the facilities
of PF and ESI and payment of bonus was also not paid to the workmen. It is
stated that the management had also not issued letter of appointment. It is
stated that the management was also not maintaining proper records of the
workmen and was indulging in unfair labour practices. It is stated that the
management was also not making payment of overtime wages and the
workmen had to work for 10 to 12 hours everyday. It is stated that the
workmen joined Delhi General Mazdoor Front to fight for their demands and
this fact came to the knowledge of the management. It is stated that on
demand of the legal facilities by the workmen, the management got annoyed
and transferred the workmen to other establishment i.e. M/s. Toshibha
Contd.......
//3//
Appliances Co. Pvt. Ltd., Anand Parbat, Delhi:-110006. The workmen
protested the illegal action of the management. On 24.06.2000 the workmen
reported for duty on the said establishment, but the management started
beating the workmen and obtained their signatures forcibly on some blank
papers. Thereafter, on 01.07.2000 the workmen reported for duty on previous
establishment, but the management refused to take them back on duty and
the services of the workmen were terminated on the same day i.e. 01.07.2000.
Thereafter also the workmen reported for duty everyday, but the management
refused to take them back on duty. The services of the workmen have been
terminated without issuing any notice or charge-sheet and no compensation
has been given to the workmen. It is stated that the workmen sent notice of
demand dt. 12.07.2000 to the management, but the workmen were not
reinstated. It is stated that the workmen made complaint to the Labour
Inspector through Union, but despite effort of the Labour Inspector workmen
were not reinstated and their dues were also not paid. It is stated that the
workmen presented their claim before the Conciliation Officer, but due to non-
cooperative attitude of the management, conciliation was not arrived and the
case was referred to the court. It is stated that the workmen are unemployed
since the date of termination of their services. It is prayed that an award be
passed thereby reinstating the workmen in service with full back wages and
continuity of service.
Contd........
//4//
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
management has stated that the workmen Sh. Dilip and Sh. Rajinder were
never in the employment of the management at any point of time. The
workman Sh. Ashok Kumar Shah had not completed 240 days of continuous
service as he had joined the management on 26.06.2000 and he left the
services of his own w.e.f. 30.06.2000. Claimant Sh. Raj Bahadur had taken a
sum of Rs.2539/- as his full and final account from the management after
submitting his resignation, hence the claim of claimant Sh. Raj Bahadur is not
maintainable. The workmen Sh. Rajesh-II, Sh. Rajesh-I and Sh. Jai Prakash
had been absenting from duties of their own w.e.f. 30.06.2000 without
intimation and they abandoned their services of their own. It is stated that the
management has closed down manufacturing activities w.e.f. 01.04.2005 due
to changed Govt. policies. It is stated that the particulars of the services as
furnished by the claimants in the statement of claim are false. The workman
Sh. Ashok Kumar Shah had joined management on 26.06.2000 and he
absented from duties from 30.06.2000. The claimant Sh. Rajesh-I joined
management on 01.05.1997. The workmen Sh. Rajesh-II and Sh. Jai Prakash
joined the management on 01.04.1997. It is denied that the management was
not maintaining the attendance register and the management was not
providing the legal facilities of PF, ESI and bonus to its employees, as alleged.
Contd........
//5//
It is denied that the management is not maintaining proper records of its
employees and is indulging in unfair labour practices, as alleged. It is also
denied that the signatures of the workmen were obtained forcibly on blank
papers by the management. It is also denied that the claimants who were
employed with the management, were transferred to other establishment i.e.
M/s. Toshiba Appliances Co. Pvt. Ltd., as alleged. It is stated that the
management has only one concern situated at 44/15, Shahbad, Daulatpur,
Bawana Road, Delhi:-110042. It is also denied that the workmen employed
with the management reported for duty on said establishment on 24.06.2000
and that the management started beating them and obtained their signatures
forcibly on blank papers, as alleged. It is denied that on 01.07.2000 the
claimants reported for duty and the management refused to take them on duty
and on the same day the services of the claimants were terminated by the
management. It is stated that the management appeared before the
Conciliation Officer and offered duty in writing to their employees, but despite
directions made by the Conciliation Officer they opted not to join the duty. The
management sent notices dt. 11.07.2000, 20.07.2000 & 10.08.2000 to the
claimants who were absenting from duty since 30.06.2000, but the claimants
failed to join the duty. It is stated that the management sent legal dues to the
claimants who were employed by the management by cheques on 22.09.2000
at their last available addresses which were duly received by them. It is stated
that claimants are not entitled to relief claimed.
Contd........
//6//
4. The workmen have filed rejoinder to the WS of management. In the
rejoinder workmen have reiterated the contents of statement of claim and have
controverted the allegations of management as stated in the WS of
management.
5. From the pleadings of parties following issues were framed by my Ld.
Predecessor on 20.01.2004:
1. Whether there existed relationship of employer and employees
between the workmen Dilip and Rajender and the management?
2. Whether the workman Ashok Kumar Shah had completed 240 days in
continuous service of the management? If so, its effect.
3. Whether the workman Raj Bahadur received Rs.2539/- towards full
and final settlement after submitting his resignation? If so, its effect.
4. Whether the workmen Rajesh-I, Rajesh-II and Jai Prakash abandoned
their services? If so, its effect.
5. As in terms of reference.
6. From the pleadings of parties following additional issue was framed by
my Ld. Predecessor on 08.11.2005:
1. Whether the management has closed down its manufacturing activities
irrevocably w.e.f. 01.04.2005 due to changed Govt. Policies? If so, its
effect? OPM.
Contd.......
//7//
7. To prove their case workmen examined workman Sh. Ashok Kumar
Shah as WW1, workman Sh. Jai Prakash as WW2, workman Sh. Rajesh-II as
WW3, workman Sh. Rajesh-I as WW4 and workman Sh. Dilip Kumar as WW5
and AR for workmen closed WE on 31.05.2005.
8. In support of its case management examined Sh. Jaidev Samal, Part-
time Accountant, as MW1 and Ms. Chandra Kanta, Head Clerk ESIC, Branch
Office Rohini as MW2 and AR for management closed ME on 11.01.2007.
9. I have heard Authorized Representatives for both the parties and
carefully perused record. My findings on specific issues are as under:
ISSUE NO. 1
10. In the written statement the management has taken the objection that
alleged workmen Sh. Dilip and Sh. Rajender were never in the employment of
the management and there existed no relationship of employer and employee
between the management and workmen Sh. Dilip and Sh. Rajender.
11. The workman Sh. Rajender has not appeared in the witness box to
prove that he has been in the employment of management since May 1995 as
Mistry at the salary of Rs.1800/- per month as stated in the statement of claim.
The workman Sh. Rajender Prasad has failed to prove that he was appointed
by the management and his services were terminated illegally by the
management, as alleged.
Contd......
//8//
12. The workman Sh. Dilip appeared in the witness box as WW5 and
adduced evidence by way of affidavit Ex. WW5/A. The workman Sh.
Dilip/WW5 has relied on notice dt. 12.07.2000 issued to the management by
Delhi Genral Mazdoor Front Ex. WW1/1, postal receipt Ex. WW1/2, copy of the
letter Ex. WW1/3 dt. 17.07.2000, postal receipt Ex. WW1/4, complaint to the
Asstt. Labour Commissioner dt. 17.07.2000 made by Delhi General Mazdoor
Front (Regd.) Ex. WW1/5, complaint to Chief Factory Inspector dt. 02.08.2000
made by Delhi General Mazdoor Front (Regd.) Ex. WW1/6, letters Ex. WW5/1
to Ex. WW5/4. Notice Ex. WW1/1, letter Ex. WW1/3, complaints Ex. WW1/5
and Ex. WW1/6 do not prove the date of appointment of workman Sh. Dilip
with the management, post of Sh. Dilip, the last drawn wages of Sh. Dilip and
that the workman Sh. Dilip has worked continuously for 240 days in a year with
the management. Workman Sh. Dilip/WW5 admitted in the cross-examination
that the inland letter Ex. WW5/1 is addressed to Sh. Dilip Kumar Nishad and
the date in the stamp of the post-office is in the ink. WW5 further stated in the
cross-examination that his name is Dilip Kumar Nagar. Letters Ex. WW5/1 to
Ex. WW5/4 do not prove the relationship of employer and employee between
the management and the workman Sh. Dilip as the same can also be received
by workman Sh. Dilip at the address of management in arrangement with other
employees of the management. The workman Sh. Dilip/WW5 stated in the
cross-examination that he does not have any document to show that he had
contd.......
//9//
been appointed by the management in June 1996. The workman Sh. Dilip has
not filed any document on record to prove his appointment with the
management or his post or that he is in the employment of the management
for the period as alleged.
13. In Workmen of Nilgiri Coop. Marketing Society Ltd. vs. State of Tamil
Nadu and Ors., 2004 LLR 351 Hon'ble Supreme Court held that:
36. In a given case it may not be possible to infer
that a relationship of employer and employee has
come into being only because some persons had
been more or less continuously working in a particular
premises inasmuch as even in relation thereto the
actual nature of work done by them coupled with
other circumstance would have a role to play.
38. The control test and the organization test,
therefore, are not the only factors which can be said
to decisive. With a view of elicit the answer, the court
is required to consider several factors which would
have a bearing on the result: (a) who is appointing
authority; (b) who is the pay master; (c) who can
dismiss; (d) how long alternative service lasts; (e) the
extent of control and supervision; (f) the nature of the
job, e.g. whether, it is professional or skilled work; (g)
nature of establishment; (h) the right to reject.
Contd......
//10//
14. It was for the workman Sh. Dilip to prove that he has been employed
with the management for the period as alleged and that his services were
terminated illegally by the management. The workman Sh. Dilip has examined
himself in support of his case and has adduced evidence by way of affidavit
Ex. WW5/A and he has also relied on Ex. WW1/1 to Ex. WW1/6 and Ex.
WW5/1 to Ex. WW5/4. However, the said documents do not prove the
relationship of employer and employee between the management and the
workman Sh. Dilip. The workman Sh. Dilip has not produced any evidence in
the form of receipt of salary or wages to prove his employment and to show
that he has worked with the management for the period as alleged. The
workman Sh. Dilip has failed to prove that there existed relationship of
employer and employee between the parties.
15. Both the workmen namely Sh. Rajender and Sh. Dilip have failed to
prove that there existed relationship of employer and employee between the
parties. This issue stands answered accordingly.
ISSUE NO. 2
16. In the statement of claim the workman Sh. Ashok Kumar Shah has
stated that he has been employed with the management since June 1996. In
the written statement the management has stated that the workman Sh. Ashok
Kumar Shah joined management on 26.06.2000 and he left the services of his
own w.e.f. 30.06.2000 and he has not completed 240 days of his service in a
year with the management. The contention of AR for management is that it is
contd.....
//11//
for the workman Sh. Ashok Kumar Shah to prove that he has worked
continuously for 240 days in a year with the management.
17. In Range Forest Officer v. S.T. Hadimani, 2002 (93) FLR 179 (SC),
the Hon'ble Supreme Court held that it was then for the claimant to lead-
evidence to show that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is only his own statement in his
favour and that cannot be regarded as sufficient evidence for any Court or
Tribunal to come to the conclusion that a workman had, in fact, worked for 240
days in a year. No proof of receipt of salary or wages for 240 days or order or
record of appointment or engagement for this period was produced by the
workman. On this ground alone, the award is liable to be set aside.
18. In Rajasthan State Ganganagar S. Miils Ltd. v. State of Rajasthan
and another, 2004 (4) LLN 845; Municipal Corporation, Faridabad v. Siri
Niwas, 2004 LLR 1022 (SC): 2004 (4) LLN 785 and Madhya Pradesh
Electricity Board v. Hariram, 2004 (4) LLN 839: 2005 LLR 1 (SC), the
Hon'ble Supreme Court reiterated the principle that burden of proof lies on the
workman to show that he had worked continuously for 240 days in the
preceding one year prior to his alleged retrenchment and it is for the workman
to adduce an evidence apart from examining himself to prove the factum of his
being in employment of the employer.
Contd........
//12//
19. In Surendranagar District Panchayat and Anr. v. Jethabhai Pitamberbhai,
2006 LLR 250 the Hon'ble Supreme Court held that when the workman apart from
examining himself in support of his contention has not produced any proof in the form
of receipt of salary or wages for 240 days or record of his appointment or engagement
for that year to show that he has worked with the employer for 240 days to get the
benefit under section 25F of the Industrial Disputes Act, in the absence of evidence
on record the Labour Court and the High Court have committed an error in law and
fact in directing reinstatement of the respondent-workman.
20. Hence, as per aforesaid decisions it is for the workman to prove that he has worked continuously for 240 days in a year with the management. The workman Sh. Ashok Kumar Shah appeared in the witness box as WW1 and adduced evidence by way of affidavit Ex. WW1/A. The workman Sh. Ashok Kumar Shah has relied on document Ex. WW1/1 to Ex. WW1/6. Ex. WW1/1 to Ex. WW1/6 do not prove the date of appointment of the workman Sh. Ashok Kumar Shah with the management. In the cross-examination workman Sh. Ashok Kumar Shah stated that he does not have any document which may show that he had completed 240 days of continuous service with the management. The workman/WW1 further stated in the cross-examination that he was member of ESI Scheme. However, the WW1 has not produced ESI Card which was issued in his favour being the employee of the management in order to prove his date appointment with the management or that he has been in the employment of management since June 1996 as stated in the contd......
//13// statement of claim and that he has worked continuously for 240 days in a year with the management. The management examined Ms. Chandra Kanta, Head Clerk of ESIC as MW2 who produced the declaration form in respect of workman Sh. Ashok Kumar Shah which is Ex. MW2/1. As per Ex. MW2/1 the date of appointment of the workman Sh. Ashok Kumar Shah is 26.06.2000. The declaration form Ex. MW2/1 is signed by the workman Sh. Ashok Kumar Shah and the workman Sh. Ashok Kumar Shah has given the details of his other family members who were to enjoy the facility of ESIC. In the cross- examination of MWs the workman Sh. Ashok Kumar Shah has not given any suggestion to the effect that Ex. MW2/1 is not signed by him and the particulars of family of workman Sh. Ashok Kumar Shah furnished in the said declaration form were not disclosed by the workman Sh. Ashok Kumar Shah. MW2 also produced the return of contributions (Form-6) which is Ex. MW2/2 and in the said return it has been disclosed that the workman Sh. Ashok Kumar Shah has been paid wages for 4 days for the period to which Ex. MW2/2 pertains i.e. 01.04.2000 to 30.09.2000. The plea of AR for the management is that the workman Sh. Ashok Kumar Shah has worked with the management only from 26.06.2000 to 30.06.2000 i.e. for 4 days. The contention of AR for the workman Sh. Ashok Kumar Shah is that in Ex. MW2/2 in the column of remarks the date of appointment of the workman Sh. Ashok Kumar Shah is mentioned as 06.06.2000 and not as 26.06.2000.
Contd......
//14// However, the same is also of no help to the workman Sh. Ashok Kumar Shah as the same does not prove the employment of the workman with the management since June 1996 and that the workman Sh. Ashok Kumar Shah has worked continuously worked for 240 days in a year with the management. The another plea of AR for the workman is that MW1 has stated in the cross- examination that the workman Sh. Ashok Kumar Shah worked for the management for about 200 or 240 days. MW1 is the part-time Accountant who was produced in the witness box by the management and he stated in the cross-examination that the workman Sh. Ashok Kumar Shah worked for management for about 200 or 240 days. MW1 has not stated in his cross- examination that the workman Sh. Ashok Kumar Shah has worked continuously for 240 day in a year with the management. The testimony of MW1 does not prove that the workman Sh. Ashok Kumar Shah has worked continuously for 240 days in a year with the management. The contention of AR for the workman is that the management has not proved that the workman Sh. Ashok Kumar Shah has not worked continuously for 240 days in a year with the management. The contention of AR for the management is that the management has produced the muster roll and salary sheets for the month of June 2000 in order to prove that the workman Sh. Ashok Kumar Shah has worked only for 4 days with the management. The muster roll and salary sheets for the month of May 2000 to and July 2000 are Ex. MW1/2 collectively Contd.......
//15// and the name of the workman Sh. Ashok Kumar Shah does not find mention in the month of May 2000 and in the month of June 2000 the workman Sh. Ashok Kumar Shah has been shown to have worked only for 4 days i.e. from 26.06.2000 to 29.06.2000 and in the month of July 2000 the workman Sh. Ashok Kumar Shah has been shown as absent during the entire month. Moreover, in the cross-examination of MW1 the authenticity of Ex. MW1/2 collectively has not been challenged. It is to be noted that it is for the workman Sh. Ashok Kumar Shah to prove that he has worked continuously for 240 days in a year with the management.
21. In A. I. Railway Parcel and Goods Porters Union vs. Union of India and others-2003(99)FLR-203 it was held that:
As per the established principle of law, the petitioners in order to succeed will have to substantiate their claim. Non-production of evidence in opposition will not support the claim of the petitioners even by legal fiction. The Assistant Labour Commissioner, in our opinion, has failed to appreciate this proposition of law while recommending the claim of petitioner.
22. In Ravi N. Tikoo v. Deputy Commissioner (S.W.) & Ors. 2006 II AD (DELHI) 560 our own Hon'ble High Court observed as under:
37"At this stage, it becomes necessary also to know that extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defence before the industrial adjudicator. Such issue can be examined in Contd.....
//16// the light of the provisions of Order 8 Rules 5 & 10 of the Code of Civil Procedure and the principles of law laid down thereunder.
Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to answer the reference in favour of the workman.
However, the basic principle being that where a claimant comes to court, he must prove his case, cannot be whittled down even in a case where no respondent appears. The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant which would include the pleadings and evidence in support and evaluate the same and be satisfied that the case set up by the claimant has been adequately established.
It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favour of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence.
38 In this behalf in (2005) 5SCC 100 entitled Manager, Reserve Bank of Bangalore vs. S. Mani & Others, the Apex Court observed thus:-
"Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the contd.......
//17// respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non- traverse. In any event, the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30-5-1988 and 11-4-1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness . Only by reasons of non-response to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so."
23. The workman Sh. Ashok Kumar Shah has only examined himself in support of his contention and he has not produced any evidence either in the form of receipt or wages or any other record to prove that he has worked continuously for 240 days in a year with the management. As the workman Sh. Ashok Kumar Shah has not worked continuously for 240 days in a year with the management, hence his services were not required to be dispensed with in accordance with provisions of Section 25F of the Industrial Disputes Act, 1947. This issue stands answered accordingly.
ISSUE NO. 3
24. In the written statement the management has stated that the workman Sh. Raj Bahadur had taken a sum of Rs.2539/- as his full and final account from the management after submitting his resignation and claim of the contd.......
//18// workman Sh. Raj Bahadur is not maintainable. The management examined Sh. Jaidev Samal as MW1 who adduced evidence by way of affidavit Ex. MW1/A and in para 7 of the affidavit Ex. MW1/A the management has stated that the claimant Sh. Raj Bahadur had taken a sum of Rs.2539/- as full and final account from the management after submitting his resignation, hence, claim of the claimant Sh. Raj Bahadur is not maintainable. The copy of the full and final receipt voucher signed by the claimant Sh. Raj Bahadur which is Ex. MW1/3. In the cross-examination of MW1 AR for the workman has not given any suggestion to MW1 to the effect that the Ex. MW1/3 was not executed by the workman Sh. Raj Bahadur or that the same does not bear the signature of the workman Sh. Raj Bahadur and the workman Sh. Raj Bahadur has not taken the full and final settlement from the management. The workman Sh. Raj Bahadur has not appeared in the witness box in order to rebut the claim of the management regarding taking of full and final settlement from the management. Hence, the management has not proved that the workman Sh. Raj Bahadur had taken full and final settlement after submitting his resignation. As the workman Sh. Raj Bahadur has voluntarily left the service of the management after taking full and final settlement and there is no question of termination of service of the workman Sh. Raj Bahadur illegally and/or unjustifiably by the management. This issue stands answered accordingly.
Contd...
//19// ISSUE NO. 4
25. In the written statement the management has stated that the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash have been absenting from the duties of their own w.e.f. 30.06.2000 without any intimation and on 11.07.2000, 20.07.2000 and 10.08.2000 the management had written letters to workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash to report for duty, but they have not reported for duty and in the conciliation proceedings also the management had requested the Conciliation Officer to direct them to join the duty, but despite directions of the Conciliation Officer the workmen Sh. Rajesh- I, Sh. Rajesh-II and Sh. Jai Prakash have not joined the duties.
26. 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 Contd.....
//20// the part of the officer to abandon and relinquish the office'.
27. 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.
28. 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 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.
29. 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".
Contd.....
//21//
30. The workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash appeared in the witness box as WW4, WW3 and WW2 respectively and they adduced evidence by way of affidavits Ex. WW4/A, Ex. WW3/A and Ex. WW2/A respectively. WW2 to WW4 admitted in the cross-examination that they have received 4 letters from the management which are Ex. WW2/M1 to Ex. WW2/M4, Ex. WW3/M1 to Ex. WW3/M4 and Ex. WW4/M1 to Ex. WW4/M4. Ex. WW2/M1, Ex. WW3/M1 and Ex. WW4/M1 are the letters dt. 11.07.2000 written by the management to the concerned workmen thereby intimating the said workman that he has been absenting from the duties from 30.06.2000 without sanction of any leave and the workman has been directed to report for duty within two days from the receipt of the said letter. Ex. WW2/M2, Ex. WW3/M2 and Ex. WW4/M2 are the letters dt. 20.07.2000 written by the management to the concerned workman wherein it was stated by the management that the said workman has been absenting from duties w.e.f. 30.06.2000 and despite letter dt. 11.07.2000 he has not reported for duty and the workman has been directed to report for duty within two days of receipt of the said letter. Ex. WW2/M3, Ex. WW3/M3, Ex. WW4/M3 are the letters dt. 10.08.2000 written by the management to the concerned workman stating that he has been absenting from the duties w.e.f. 30.06.2000 contd.....
//22// unauthorizedly and despite receipt of letters, 11.07.2000 and 20.07.2000 he has not reported for duty and the workman has also not submitted any explanation for his absence and on that account services of the concerned workman have been terminated as he is not interested in continuing his services with the management. The workman has been told to collect his dues within three days from the office of the management. Ex. WW2/M4, Ex. WW3/M4 and Ex. WW4/M4 are the letters dt. 22.09.2000 written by the management to the concerned workman stating therein that he has been unauthorizedly absenting from duties w.e.f. 30.06.2000 and the management has given opportunity to join the duty by the aforesaid letters, but he has not reported for duty and despite directions of the Conciliation Officer he has not reported for duty and as the workman has not reported for duty, the management is sending cheques for a sum of Rs.5910/-, Rs.6897/- and Rs.5971 to WW2, WW3 and WW4 respectively as their full and final settlement amount. All the workmen namely Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash admitted in the cross-examination that they had received letters Ex. WW2/M1 to Ex. WW2/M4, Ex. WW3/M1 to Ex. WW3/M4 and Ex. WW4/M1 to Ex. WW4/M4 from the management and they received the said cheques also from the management in September towards their all legal dues. WW2, WW3 and WW4 also admitted in the cross-examination that on 25.08.2000 the Contd......
//23// Conciliation Officer had directed them to report for duty at the office of the management. However, WW2, WW3 and WW4 voluntarily stated in the cross- examination that they had gone to report for duty on the next date, but the management did not allow to join them duty. WW2, WW3 and WW4 however stated in the cross-examination that they did not make any complaint to the Conciliation Officer that despite his direction dt. 25.08.2000 the management had not allowed them to join the duty. WW2, WW3 and WW4 have not proved that if the management had not allowed them to join the duty in pursuance of directions of the Conciliation Officer, they they made any complaint to any authority or that they had written any letter to the management stating therein that despite directions of the Conciliation Officer they were not allowed to join the duty by the management. It is to be noted that the in para 9 of the statement of claim the workmen have stated that they had initiated conciliation proceedings, but due to adamant attitude of the management conciliation proceedings failed. But, in their cross-examination, WW2, WW3 and WW4 admitted that on 25.08.2000 the Conciliation Officer had directed them to report for duty at the office of the management. The workmen have nowhere stated in the statement of claim that in pursuance of direction of Conciliation Officer dt. 25.08.2000 they had gone to report for duty, however, they were not allowed to join the duty by the management. Hence, the workmen have failed to substantiate their contentions that as per directions of the Conciliation Officer dt. 25.08.2000 Contd........
//24// they had gone to report for duty, but they were not allowed to join the duty by the management. In the cross-examination of MW1 also the workmen have not given any suggestion to the effect that the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash had reported for duty to the management in pursuance of directions dt. 25.08.2000 of Conciliation Officer, but the management did not allow the workmen namely Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash to resume the duties. Hence, the contention of AR for the management that the workmen were unauthorizedly absenting from the duties w.e.f. 30.06.2000 and they failed to join the duties despite letters of management dt. 11.07.2000, 20.07.2000 and 10.08.2000 and the workmen also failed to join despite directions of the Conciliation Officer dt. 25.08.2000 has remained unrebutted.
31. 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 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.
32. In case titled as Competition Printing Press vs. Jaiprakash Singh and Another 2001-II-LLJ 1341, management attended the office of contd........
//25// 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.
33. 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 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.
Contd....
//26//
34. In the aforesaid discussions it has been held that the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash failed to resume duties despite letters dt. 11.07.2000, 20.07.2000 and 10.08.2000 of the management and despite directions dt. 25.08.2000 of the Conciliation Officer. These circumstances and conduct of the workmen lend support to the version of management that the workmen had abandoned the employment of management and they never came back to report for duty even after offer of the management for duty by way of letters 11.07.2000, 20.07.2000 and 10.08.2000 and before the Conciliation Officer. This leads to the conclusion that the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash had abandoned the employment of management.
35. The plea of the management is that the management has sent all the legal dues of the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash by way of cheques in September, 2000 alongwith letters dt. 22.09.2000 which are Ex. WW2/M4, Ex. WW3/M4 and Ex. WW4/M4. WW2, WW3 and WW4 admitted in the cross-examination that they received letters dt. 22.09.2000 Ex. WW2/M4, Ex. WW3/M4 and Ex. WW4/M4 from the management and WW2, WW3 and WW4 further admitted in the cross-examination that they have received their legal dues from the management by way of cheques in September 2000.
contd.....
//27//
36. In M/s. Sagari Leathers (P) Ltd. v. Presiding Officer, Industrial Tribunal (4), Agra and others, 2006 LLR 1170 it was held that receiving cheque in full and final settlement and encashing the same without any reservation, cannot be construed that it amounted to retrenchment and that the employee has not left the job of his own accord.
37. 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.
38. 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 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.
39. 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 Contd....
//28// 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.
40. In view of the aforesaid discussions it is held that the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash absented themselves from duties w.e.f. 30.06.2000 without any information or prior sanction of leave. This issue stands answered accordingly.
Contd......
//29// Additional issue no. 1 framed on 08.11.2005.
41. In para 8 of PO of amended W.S. the management has stated that the claim statement seeking reinstatement is not competent in as much as the management has closed down manufacturing activities irrevocably w.e.f. 01.04.2005 due to changed Government policies. The management examined Sh. Jaidev Samal as MW1 who adduced evidence by way of affidavit Ex. MW1/A and in para 10 of the affidavit Ex. MW1/A the management has stated that the management has closed down manufacturing activities irrevocably w.e.f. 01.04.2005 due to changed Government policies and the intimation has been given to different authorities, Ex. MW1/4 is the letter dt. 07.06.2005 whereby intimation was given to the Regional Director, ESIC regarding closure of the management, Ex. MW1/5 is the letter dt. 23.05.2005 whereby intimation was given to the Regional Provident Fund Commissioner regarding closure of the management, Ex. MW1/6 is the letter dt. 28.03.2005 written by the management to Superintendent/Deputy Commissioner, Central Excise regarding surrender of the Registration Certificate, Ex. MW1/7 is the letter dt. 02.12.2005 to the Delhi Value Added Tax Officer whereby the Registration Certificate under Delhi Central Sales-Tax was surrendered for cancellation. In the cross-examination of MW1 no suggestions have been given to the effect that the management has not been closed w.e.f. 01.04.2005 and it is still carrying on the manufacturing activities and the letters Ex. MW1/4 to Ex. MW1/7 have not been written to the parties mentioned therein about the contd.....
//30// closure of the management, Hence the testimony of MW1 to the effect that the management has been closed w.e.f. 01.04.2005 has remained unrebutted. This issue stands answered accordingly.
ISSUE NO. 5
42. In findings on issue no. 1 above it has been held that there existed no relationship of employee and employer between workmen Sh. Dilip and Sh. Rajender and the management. As the workmen Sh. Dilip and Sh. Rajender were not the employees of the management, hence there is no question of termination of their services illegally and/or unjustifiably by the management. In findings on issue no. 2 above it has been held that the workman Sh. Ashok Kumar Shah has failed to prove that he has worked continuously for 240 days in a year with the management. As the workman Sh. Ashok Kumar Shah has not worked continuously for 240 days in a year with the management, hence he is not entitled to the benefits of Section 25F of the I.D. Act, 1947 and there is no question of termination of his services illegally and/or unjustifiably by the management. In findings on issue no. 3 above it has been held that the workman Sh. Raj Bahadur has received a sum of Rs.2539/- towards full and final settlement amount from the management after submitting his resignation. As the workman Sh. Raj Bahadur has himself left the services of the management after taking his full and final settlement hence there is no contd......
//31// question of termination of his services illegally and/or unjustifiably by the management. In findings on issue no. 4 above it has been held that the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash had abandoned the services of their own. As the workmen Sh. Rajesh-I, Sh. Rajesh-II and Sh. Jai Prakash had abandoned the services of their own, hence there is no question of termination of their services illegally and/or unjustifiably by the management. Consequently, all the workmen are not entitled to any relief. Reference stands answered accordingly. Copies of 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 16.03.2007.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI ID No. 740/06 16.03.2007 After lunch Present: None.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law.
File be consigned to Record Room.
POLC/16.03.2007