Delhi District Court
Through: Delhi General Employees vs Guru Harkishan Public School on 17 March, 2021
IN THE COURT OF SHRI GORAKH NATH PANDEY
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - IV
ROUSE AVENUE COURTS : NEW DELHI
LIR No.1341/2016
IN THE MATTER OF :
Sh. Vimal Kumar,
S/o late Sh. Mohan Lal,
R/o A31, West Nathu Colony,
Ashok Nagar, Delhi110093.
Through: Delhi General Employees
Congress Union (Regd.)
D1162, Gali No.5, Ashok Nagar, Delhi110093.
....WORKMAN/CLAIMANT
VERSUS
Guru Harkishan Public School,
133, AGCR Complex, Hargobind Enclave,
Delhi110092.
....MANAGEMENT
Date of institution of the case : 22.09.2014
Date of arguments : 24.02.2021
Date of passing the Award : 17.03.2021
AWARD
1. Vide this Award I shall decide the Industrial Dispute
which was referred by Dy. Labour Commissioner, NorthEast
District on a complaint filed by the aforesaid claimant /workman
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against the Management, vide reference no.
F.24(76)/E/Lab./14/4081 dated 17.07.2014, u/s 10(1)(C) and
12(5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :
"Whether demand of Sh. Vimal Kumar,
S/o Mohan Lal for salary/wages monetary
benefits, allowance, continuity of service
and consequential benefits and entitled to
reinstatement in service with full back
wages is justified and if yes to what relief is
he/she and entitled and what directions are
necessary in this respect?"
2. Notice of reference was issued to the workman and
pursuant thereto, statement of claim was filed claiming therein
that he was employed with the management w.e.f. 23.12.2008 as
Driver and his last drawn salary was Rs.8528/ per month. He
worked sincerely with the management and never given any
opportunity of complaint during entire service period. It is further
stated by the workman that as per order no.F.No.12
(142)/02/MW/VII/3124 dated 03.10.2013, the Delhi Government
fixed the salary of skilled workman as Rs.9386/ from
01.04.2013 but despite that the workman was given Rs.8528/
per month as salary by the Management. The workman also
requested the Management orally to give him minimum wages as
per the said order but the Management did not hear his request. It
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is further submitted that the management had not provided any
appointment letter to the workman. Even the management
obtained the signatures of the workman on certain blank papers
on the pretext of making his service record but no service record
was ever prepared by the Management. On the resistance of
workman, the Management started obtaining the attendance of
the workman and other employees on temporary register.
3. The workman further contended that the
management had not provided any legal facilities like
appointment letter, wages slip, leave wages book etc. which were
being demanded orally by the workman from the management.
Further, the Management followed the discrimination policy in
between the workman and other employee and management paid
a salary of Rs.15,000/ per month to Sh. Parvinder Singh who
was employed by the management after the workman. The
management terminated his services on 17.05.2013 illegally and
unlawfully and without adopting the due process of law and
without giving any notice/charge sheet or conducting any
enquiry. He was not provided any termination letter by the
management. Legal demand notice dated 05.09.2013 was issued
to the management through Union asking for legal dues and
illegal termination of the workman which was not replied. The
workman approached the Conciliation Officer, Vishwakarma
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Nagar, Jhilmil Colony, Delhi vide complaint against the
management dated 30.09.2013 but the management did not
appear before the Conciliation Officer. Notice was also issued
by the Conciliation Officer of statement of claim filed by the
workman against management but management did not produce
any records nor appeared therein. As the workman was illegally
terminated and was not reinstated, he is entitled for reinstatement
in service with full back wages. As claimed, the management
has not issued any chargesheet and warning nor conducted any
domestic enquiry while terminating the service of the workman.
It is prayed that an award be passed in favour of workman and
against management directing the management to reinstate him
with consequential benefits including full back wages and
continuity in service.
4. Notice of the statement of claim was issued to the
management and management had filed the written statement to
the statement of claim of workman thereby taking preliminary
objection contending that the workman has abandoned the job on
his own as he had got some better job for himself with any other
management. The management denied all the averments of the
statement of claim of the workman. It is submitted that the
services of the workman were taken by the management as there
was a shortage of drivers and an office note bearing
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no.GHPS/HG/200809/2933A dated 31.12.2008 was prepared in
this regard. It is further submitted that after a few months from
the employment, the workman was irregular and had been
constantly taking leave from the school and was also not
punctual in performing his duties. It is submitted that the
workman was not satisfied with the current payment method of
Rs.158/ per day and demanded to increase the payment method
as Rs.6000/ per month w.e.f. 01.02.2009 and thereafter, from
March, 2009, he was given Rs.6000/ per month instead of
Rs.158/ per day. It is further submitted that the workman was
kept as a driver only on temporary basis and there was no terms
of service between the workman and the management. It is also
submitted that memos on record were also given to the workman
for his erratic absence from duty but the workman refused to
accept the same. It is further submitted that after issuance of
memos dated 18.04.2013 and 06.05.2013, the workman attended
the duties for a few more day and thereafter, absented himself
from the duties. Various messages were sent to him by the
management but the workman did not come back. The
management lastly prayed to dismiss the claim.
5. The claimant / workman filed rejoinder to written
statement/reply filed by management thereby reiterating and
reaffirming the contents of his statement of claim.
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6. Vide order dated 25.04.2016, the following issues
were framed in view of pleadings of the parties :
ISSUES:
1. Whether the management illegally and unjustifiably
terminated services of the workman? OPW.
2. Whether the claimant, abandoned the job as alleged by the
management? OPM.
3. Whether the claimant is gainfully employed ever since
abandonment of his job? If so its effect. OPM.
4. Whether demand raised by the claimant before the
management for salary/wages, monetary benefits, allowances,
continuity of service and consequential benefits and for
reinstatement in service with full back wages is justified? OPW.
5. Relief.
The case was, thereafter, fixed for evidence of
workman.
7. In order to discharge the onus and prove the issues,
the workman had appeared as witness and filed in evidence, his
examination in chief by way of affidavit Ex. WW1/A wherein he
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents :
1. PSV driver's badge of workman is Ex.WW1/;
2 Driving license of workman is Ex.WW1/2;
3 Notification dated 03.10.2013 issued by Delhi Govt.
is Ex.WW1/3;
4 Demand notice dated 05.09.2013 sent by the
workman to the management is Ex.WW1/4 and the postal receipt
thereof is Ex.WW1/5;
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5 Certified true copy of conciliation proceedings
conducted before Assistant Labour Commissioner (East) is
Ex.WW1/6.
8. As no other witness was examined by the workman,
the workman's evidence was closed vide order dated 18.11.2016
and the case was fixed for management's evidence.
9. In rebuttal, management had examined Sh. Ravinder
Preet Singh, Superintendent of Management as MW1 who filed
his affidavit by way of evidence as Ex.MW1/A, reiterating the
factual contents of the written statement of management on
solemn affirmation. Besides this, he had also placed on record
the following documents :
1. Authority Letter dated 30.11.2016 issued by the
Principal of the School in favour of MW1 is Ex.MW1/1;
2. Office note of the management dated 31.12.2008 is
Ex.MW1/2;
3. Application dated 12.02.2009 of the workman for
increasing the pay is Ex.MW1/3;
4. Office note dated 15.05.2012 is Ex.MW1/4;
5. Memo dated 18.04.2013 is Ex.MW1/5;
6. Memo dated 06.05.2013 is Ex.MW1/6.
The management's evidence was thereafter closed.
10. I have heard the arguments on behalf of the parties
and gone through the relevant materials lying on the record. I
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have also gone through the written arguments filed on behalf of
the workman in support of claim and contention and gone
through the judgments relied by Ld AR for workman i.e.
(1) M.C.D. v. Vijay Pal and Ors. decided on 30.04.2007
by Hon'ble High Court of Delhi;
(2) M.C.D. vs. Sukhvir Singh and Ors. decided on
14.02.1994 by Hon'ble High Court of Delhi.
11. My issue wise findings are as under:
ISSUE No.1 & 2
1. Whether the management illegally and unjustifiably
terminated services of the workman? OPW.
2 Whether the claimant, abandoned the job as alleged by the
management? OPM.
Both these issues are examined and decided together
being interrelated.
12. The statement of claim filed by the workman along
with defence of management has been mentioned at the outset.
The workman claimed that he joined the management on
23.12.2008 as Driver and his last drawn salary was Rs.8528/ per
month; his services were terminated without giving any
notice/charge sheet w.e.f. 17.05.2013; he sent demand notice
dated 05.09.2013 which was not replied by the management.
The workman relied upon the documents Ex.WW1/1 to
Ex.WW1/6 i.e. copy of driver badge Ex.WW1/1, copy of DL
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Ex.WW1/2, copy of notification regarding minimum wages
Ex.WW1/3, copy of demand notice dated 05.09.13 with courier
receipt Ex.WW1/4 and Ex.WW1/5 respectively and the copy of
the proceedings before conciliation officer Ex.WW1/6 in support
of his claim and contentions.
The defence of the management remained that
claimant had abandoned the job on his own; he was irregular and
took long leaves from the school and was not punctual in his
duties and therefore, various complaints were received by the
management; minimum wages were being paid to the workman;
various memos were issued to him for his misconduct/absent
from duties. Management also claimed that he absented himself
from the duties despite messages by the employees of the
management and failed to join the duties.
The workman filed the rejoinder to the written
statement of the management and did not specifically deny the
averments of the management in the written statement nor
claimed that he was not allowed to join his duties; he was not
sent messages through the employees to join his duties and did
not make any offer to join the duties despite the statement of the
management in the written statement.
13. The WW1/workman/claimant vide his affidavit
Ex.WW1/A reiterated the contents of his statement of claim. The
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witness was crossexamined at length by the AR of the
management and deposed that he joined the management w.e.f.
31.12.2008 @ salary of Rs.158/ per day; vide his application
Ex.WW1/MX1, he requested the management to increase his
payment to Rs.6000/ per month. The witness during cross
examination admitted that he had not attended his duties w.e.f
04.04.2013 to 06.04.2013 and w.ef. 26.04.2013 to 05.05.2013
though denied the suggestion that he remained absent without
any information. The contention that workman informed the
management regarding his leave/absence is not proved as the
witness has not filed any application for leave on record nor
summoned any such document from the management to prove
that he remained absent after taking the leave. Admittedly, copy
of no such application is filed by the workman on record. The
workman has denied regarding the issuance of memos for his
unauthorized absent as above said but the said memos were duly
proved by the management's witness vide Ex.MW1/5 and
Ex.MW1/6. It is relevant to note that during the cross
examination of the management's witness, nothing was asked
regarding the memos issued to the workman by the AR of the
workman. Though the workman claimed that he unemployed
after 17.05.13 but has not filed any document on record to show
that during this period he ever tried to search the job or made any
such application before any authority. The workman is not
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supposed to remain sitting idle for more than 8 years and mere
oral averment is not sufficient in this respect.
14. The workman claimed that he was illegally terminated
from services on 17.05.2013; he was not allowed to join the
duties. This claim of the workman is also contrary to the truth as
the workman has not filed any document in this regard.
Moreover, none of the documents i.e. Ex.WW1/1 to Ex.WW1/6
relied by the workman contained any such stipulation that he
approached the management to join his duties but he was refused
and not permitted to join the duties. He has not examined any co
worker in this respect nor summoned any witness or record like
attendance register to show that he approached the management
for duties but was denied the same. Merely oral and bald
averments by the workman is not sufficient in this respect. Infact,
the workman has not taken any steps after 17.05.2013 till
05.09.2013 i.e. the date of issuance of demand notice to the
management to join his duties. There is no document or averment
either in the claim or in affidavit Ex.WW1/A that during this
period, he approached the management but was not granted
duties. Rather, the workman remained sitting idle after
17.05.2013.
15. MW1 deposed regarding the defence of the
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management in the written statement and also deposed regarding
the irregularities of the workman in performing his duties,
issuance of memos etc. The witness further deposed that various
messages were sent to the workman through the employees of the
management to join the duties but the workman did not join. I
have gone through the complete crossexamination of the
management's witness by the workman but nothing has been
asked in this respect nor even suggestion has been put that the
workman wanted to join duties but was prevented by the
management. Even no offer was given by the workman to resume
his duty during the crossexamination of the witness. The MW1
during crossexamination specifically deposed that:
"No written communication was sent to the workman asking
him to join his duties during his absenteeism. Verbal
message was sent through our employees asking him to join
back the duties, however, I cannot tell the exact date and
month of such communication. I cannot tell the name of the
said employee who had visited the house of the workman. It
is wrong to suggest that no employee of the school had
visited the house of the workman".
The offer of the management to the workman to join
his duties and such claim is further substantiated in view of the
record. From the record, it is apparent that repeatedly the efforts
were made and the matter was referred for settlement to
Mediation and Lok Adalat but it could not be settled. It is
relevant to note that vide order dated 18.05.2018, offer letter was
given to the workman by the management for his appointment as
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driver on contract basis at School at Nanak Piyau Branch. It is
noted that the offer of the management has not been accepted by
the workman at all and the workman has not joined the duties in
view of offer letter. Since the perusal of the record reveals that
the claimant was repeatedly offered by the management to join
the services in the management but despite opportunities, the
workman did not join his duties. Such conduct of the claimant
shows that he did not intend to join his duties with the
management. As the claimant remained absent from duties for a
long period, it may be inferred that the claimant has abandoned
the job of the management and his services were not terminated
illegally as claimed by him.
16. The defence/contention of the management since
beginning remained that the services of the workman has not
been terminated rather he absented form the duty and this claim
of the management is substantiated from the records as well as
discussed above. The testimony of the witness/workman and his
crossexamination recorded above is sufficient to show that his
version is not consistent and is contradictory to each other.
There was no suggestion given by the workman during cross
examination of the management witness that the workman was
not offered duties nor sent any intimation to take him back on
duty. Even no offer was made by the workman to join the duties
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during the crossexamination of the management witnesses or
legal proceedings. It is established from the testimony of the
management witness that the workman failed to resume duties
and remained absent without any reasonable or plausible ground
and his services was not illegally terminated by the management
at all. This Court is opinion that the management has been able to
prove that the workman did not report to the management and he
remained absent unauthorizedly from his duty on his own and the
services of the workman were not terminated by the management
illegally and unjustifiably.
17. As far as the contention of Ld. AR for the workman
that neither any notice was issued by the management asking
claimant to join nor any internal inquiry was conducted against
the workman by the management for the alleged misconduct, this
Court is of the opinion that such inquiry is only required when
the management intends to inflict some punishment upon the
workman.
Honble Delhi high Court in Diamond Toys Company
(P.) Ltd. Vs. Toofani Ram and Anr., W.P. (C) No. 4501/04,
decided on 07.02.2007 held that
"6. It is commonly known that a person, who is working in the
industry keeps on trying for better jobs and better opportunities.
The moment he gets better job, he is free to leave his previous
employer. The industrial law does not require him to pay any
compensation to the employer while leaving his job, as the
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industrial laws require an employer to pay retrenchment
compensation when employer wants to terminate the workman.
Thus, there are no fetters on the workman on leaving the job
while there are fetters on the employer in terminating the service
of an employee. If a workman leaves his job all of a sudden and
stops attending the workplace of the employer, Industrial Dispute
Act does not put any obligation on the employer to call back the
workman and request him to come and join his duties. Such a
request can be made by the employer only when employer
considers that a useful workman should not leave the job or
where a workman is governed by certain rules and regulations
under State employment and the employer is supposed to hold an
enquiry under the service rule before termination of service of an
employee. Where the workman is free to leave and join another
employer without even a notice and without obtaining a no
objection from his employer, the employer cannot be compelled
to call such a workman for joining the duties or to conduct an
enquiry into the absence of the workman and then terminate his
services. Leaving the services of an employer by the workman is
a valid mode of his abandonment and there is no illegality
attached to a workman leaving the services of his previous
employer and joining another employer. If the employer does not
consider the abandonment of service or leaving the service by a
workman as a misconduct, the law cannot force the employer to
consider such abandonment as a misconduct and hold an enquiry.
Misconduct of an employee is the one which an employer
considers as the misconduct. An enquiry is required to be held
only where an employer intends to impose punishment on the
employee for an alleged misconduct. if an employer does not
intend to impose any punishment on the employee and considers
that if the employee has left his service, let it be so, the law
cannot compel the employer to hold an enquiry and punish an
employee for the misconduct.
7. I consider that it was not necessary for the employer to hold an
enquiry into the abandonment of the service by the respondent. It
was for the respondent to prove that his services were terminated
for some reasons by the employer or without any reason by the
employer. The respondent had taken a stand which was found to
be false. Under these circumstances, the Labour Court's
conclusion that it was a case of retrenchment is perverse".
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The ratio of the judgment is squarely applicable in
the facts and circumstances of this case. It is reiterated that the
workman failed to discharge the onus in this case.
18. Hon'ble High Court of Delhi in the case of "Tej Pal
Vs. Gopal Narain & Sons & Anr", (2006) 132 DLT
311, decided on 28.08.2006 discussed the retrenchment as
envisaged under Section 25F is defined under Section 2(oo) of
the Industrial Disputes Act, which reads as under
"2(oo) 'retrenchment' means the termination by the employer
of the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of
disciplinary action but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation
in that behalf; or
(bb) termination of the service of the workman as a result of
the nonrenewal of the contract of employment between the
employer and the workman concerned on its expiry or of
such contract being terminated under the stipulation in that
behalf contained therein or)
(c) termination of the service of a workman on the ground of
continued illhealth."
8. 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
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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 the 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".
In this case, the workman did not join his duties nor
produced anything to prove that he was stopped by the
management from joining his duties. He has not accepted the
offer to join the duties even during the proceedings.
19. The claimant not joined his services nor proved his
willingness to join. He failed to prove that he approached the
management but was stopped from joining in view of documents
relied by him. It is relevant to refer observations of Hon'ble
Supreme Court in Vijay S. Sathaye Vs. Indian Air Lines Ltd. &
Ors., SLP (C) No. 2422024221 of 2007. Relevant paras 9 to 13
of the judgment has been reproduced as under -
"9. It is a settled law that an employee cannot be termed as a
slave, he has a right to abandon the service any time voluntarily
by submitting his resignation and alternatively, not joining the
duty and remaining absent for long. Absence from duty in the
beginning may be a misconduct but when absence is for a very
long period, it may amount to voluntarily abandonment of
service and in that eventuality, the bonds of service come to an
end automatically without requiring any order to be passed by
the employer.
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10. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen,
AIR 1961 SC 1567, this Court held as under:
"......there would be the class of cases where long unauthorised
absence may reasonably give rise to an inference that such
service is intended to be abandoned by the employee." (See also:
Shahoodul Haque v. The Registrar, Cooperative Societies, Bihar
& Anr., AIR 1974 SC 1896).
11. For the purpose of termination, there has to be positive action
on the part of the employer while abandonment of service is a
consequence of unilateral action on behalf of the employee and
the employer has no role in it. Such an act cannot be termed as
'retrenchment' from service. (See: State of Haryana v. Om
Prakash & Anr., (1998) 8 SCC 733).
12. In Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr.,
AIR 1964 SC 1272 while dealing with a similar case, this Court
observed :
"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."
A similar view has been reiterated in G.T. Lad & Ors. v.
Chemicals and Fibres India Ltd., AIR 1979 SC 582.
13. In Syndicate Bank v. General Secretary, Syndicate Bank
Staff Association & Anr., AIR 2000 SC 2198; and Aligarh
Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC
2783, this Court ruled that if a person is absent beyond the
prescribed period for which leave of any kind can be granted, he
should be treated to have resigned and ceases to be in service. In
such a case, there is no need to hold an enquiry or to give any
notice as it would amount to useless formalities. A similar view
has been reiterated in V.C. Banaras Hindu University & Ors. v.
Shrikant, AIR 2006 SC 2304; Chief Engineer (Construction) v.
Keshava Rao (dead) by Lrs., (2005) 11 SCC 229; and Regional
Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC
462".
20. Similarly, in Raju Sankar Poojary vs Chembur
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Warehouse Company & Ors. 2004(1) Bom CR 160, it was
observed by Hon'ble Bombay High Court that:
"The learned single Judge in the case of Sonal Garments v.
Trimbak Shankar Karve (Supra), was dealing with a
case wherein it was the contention of the employer
that the services of the workman were never
terminated by the employer and yet he remained absent
unauthorisedly and that he was always welcome to join to his
duties, and considering the facts of the said case held
that the conduct of the workman was lending support to
the version of the employer that the workman had abandoned
the employment and that he never came back to report for duty
and that it was not a case of termination by the employer.
Having held so, it was observed by the learned single Judge
as under:
"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 continue his
claim for reinstatement in the proceedings and he will also be
not entitled to claim any backwages from the date of such
offer, conditional on unconditional."
I am in respectful agreement with the proposition of law laid
down by the learned single Judge in Sonal Garments case. An
employee who has been repeatedly offered opportunity to join
the services by the employer, when fails to take
benefit of such an offer, cannot thereafter insist for
the relief of reinstatement or for backwages. It would
amount to ordering grant of bonanza for the mischief
played by the workman himself. Being so, once the
materials on record clearly disclose that in spite of
repeated offers by the respondent company, the petitioner
had failed to report to his duty, there was of fault on the part of
the Labour Court in refusing the relief of backwages. Once it
had been the consistent case of the respondent company and
having been established with the materials on record
that there was no termination of services but it was a
case of abandonment of services, by the employee, without
any justifiable reason, the question of ordering
reinstatement also cannot arise. Viewed from this angle,
therefore, there is no case for interference in the
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impugned order by this Court in its writ jurisdiction.
21. The AR of the workman argued that no notice or
charge sheet was issued to the workman nor any enquiry was
conducted in this case against him. The contention of the
workman is not sustainable. It is settled that where an employer
has failed to make an enquiry before dismissal or discharge of a
workman, it is open for him to justify the action before the labour
court by leading evidence before it. It is relevant to refer the
observations of Hon'ble Supreme Court in Civil Appeal
No.142/2021 titled State of Uttarakahand and Ors. vs. Smt.
Sureshwati decided on 20.01.2021. As held in the relevant para
no.14
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been property held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
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Vimal Kumar vs. Guru Harkishan Public School Page No. 20/27
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case , were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate case was
on a reference under Section 10, and the same principle was
applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v. Ludh
Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
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....
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to LIR No.1341/2016 Vimal Kumar vs. Guru Harkishan Public School Page No. 22/27 adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v.
Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the LIR No.1341/2016 Vimal Kumar vs. Guru Harkishan Public School Page No. 23/27 Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A."
The contention of the AR of the workman that no notice was issued to the workman nor any enquiry was held appears to have no substance as there is nothing on record to show that the workman joined his duties and was stopped by the LIR No.1341/2016 Vimal Kumar vs. Guru Harkishan Public School Page No. 24/27 management or his services were terminated by the management.
22. Management in the case herein by way of evidence succeeded to show that the workman abandoned the job by not resuming the duty despite the offer to the workman to join his duties. It is relevant to note that even at the time of final arguments before this court, the management had offered appointment and joining to the workman which was not accepted by him. In view of the aforesaid legal authorities, it is clear that in case of abandonment of job by the workman, no inquiry was required to be conducted. This court does not find any merit in the submissions made by the AR of the claimant and it is held that even if the management has failed to issue any notice/charge sheet to the claimant and conduct an enquiry even then the claimant can not be reinstated in the management nor any backwages may be given to him in the case of abandonment of job by the claimant himself. In view of settled proposition of law and evidence as discussed above, the management had not terminated the services of the claimant. Further, the contention of claimant that the management/employer was supposed to initiate an inquiry regarding his absence before terminating his services is baseless as in the case in hand, it is shown that the management had not terminated his services. It may also be discussed that the claimant failed to show anything on record, if LIR No.1341/2016 Vimal Kumar vs. Guru Harkishan Public School Page No. 25/27 at all, he was not allowed to join his duties on his reporting with the management.
23. In the given facts and circumstances, on the basis of material placed and proved on record and in view of aforesaid discussion, it is held that the aforesaid claimant/workman himself had abandoned his duty w.e.f. 17.05.2013 by remaining unauthorizedly absent and that his services was never terminated by the management. Accordingly, issues no.1 & 2 are decided in favour of management and against the workman/claimant.
ISSUE NO.3 to 5:
3. Whether the claimant is gainfully employed ever since abandonment of his job? If so its effect. OPM.
4. Whether demand raised by the claimant before the management for salary/wages, monetary benefits, allowances, continuity of service and consequential benefits and for reinstatement in service with full back wages is justified? OPW.
5. Relief.
Consequent to the decision of Issues No.1 & 2, it is held that the workman/claimant is not entitled to any relief. Issue no.3 to 5 are accordingly decided against the workman and in favour of the management. Statement of claim is therefore dismissed.
LIR No.1341/2016 Vimal Kumar vs. Guru Harkishan Public School Page No. 26/2724. Award is passed accordingly and reference stands answered in the aforesaid terms.
25. Copy of the award be sent to the Labour Commissioner for publication.
26. The award be also uploaded to server (www.delhicourts.nic.in).
27. File be consigned to record room after necessary compliance.
Announced in the open (Gorakh Nath Pandey)
Court on 17.03.2021 Addl. District & Sessions Judge
Presiding Officer Labour Court IV
Rouse Avenue District Courts.
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