Delhi District Court
Sh. Hitendra S/O Sh. Surendar Singh ... vs The Management Of Natwest Markets Plc on 12 March, 2020
1
IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER
LABOUR COURT, ROUSE AVENUE COURTS , NEW DELHI
DID No:2231/2016 ( Old DID No:455 of 2009)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Hitendra S/o Sh. Surendar Singh Kadiyan
R/o Y454/455, Camp No:1, Nangloi,
Delhi110041 .....Workman
VERSUS
1. The management of Natwest Markets PLC
"Earlier mentioned as ABNAMRO Bank"
Hansalaya Building 15, Barakhamba Road,
Cannaught Place, New Delhi110001
2. The Management of Empower Financial Services
An Associate of Royal Bank of Scotland(RBS),
7576 Floor, Amrit Nagar, Near South Ext.
Part1, New Delhi110049 .....Managements
Date of Institution : 16042009
Date of Arguments : 14022020
Date of Award : 12032020
AWARD
1. The Workman has filed the present direct Industrial dispute
against the managements. The case of the workman as stated in the
present claim is that he has been working with the management no:1
since 21082006 as a "Coordinator". It is stated that he was allowed to
work till 12122008 and thereafter he was not allowed to work by
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs
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telling him verbally that if he wanted to work he can do so without the
payment of wages. It is submitted that the management no:2 is an
Associate of the management no:1 Bank hence necessary party to the
present case. Workman stated to have worked sincerely since the date
of his appointment, therefore, he was given increment of Rs.1000/
w.e.f. 01082007 and he salary was Rs.8000/ per month onward and
PF was also being deducted by the management.
2. It is averred by the workman that on 12122008, when he
reached to the office of the management no:1 at Cannaught Place he
was not allowed to work inside the branch/bank and he was verbally
told if he wanted to work he can do so without wages, workman
opposed the said illegal and arbitrary action of the management no:1.
The workman stated to have issued a notice to the management no:1
and 2 on 13022009 for his reinstatement in the bank and payment of
his earned wages. The management no:2 replied to the said notice but
management no:1 did not send any reply to the said notice. The
management no:2, in its reply, took false plea that the claimant himself
had left the services of the management without any prior permission.
In its reply the management no:2 have not specifically denied the fact
that the claimant worked with the management no:1 from the date of his
apportionment till 12122008. It is reiterated by workman that he was
not the employee of the management no:2, rather he was the employee
of the management no:1. It is stated by the workman in paragraph
no:12 of his statement of claim that the workman was appointed by the
management bank and performed duties in the office of the
management no:1 but the management no:2 executed the terms of
employment which is undated and it was got signed from the workman
after about four months from his joining the management no:1. The
workman stated that he was forced to sign under compulsion as he was
asked to leave the job if the same is not signed and the terms and
conditions are loaded in favour of the management and are unilateral
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs
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and not in accordance of the legal provisions and contrary to the
principles of industrial harmony among others. Hence the workman has
filed the present statement of claim praying that workman is entitled to
reinstatement with full back wages w.e.f. 01122008 and continuity of
service and other consequential benefits.
3. In its written statement the management no:1 has stated that
claimant is not the employee of the management no:1 and as per the
appointment letter of the claimant dated 21082006 he was the
employee of the management no:2. It is stated that claimant has no
concern with the management no:1 as he was appointed in the company
of the management no:2. It is submitted that as per the clause 5 of the
employment letter of the claimant, the deputation of the claimant is
being on permanent or on a temporary basis to any associates of the
respondent no:2. It is stated that the false story has been created by the
claimant. Management no:1 denied the averments of the workman and prayed for dismissal of the claim of the workman.
4. In his rejoinder to the written statement of the management no:1, the workman has controverted the averments of the management no:1 and reiterated his stated. Workman reiterated that he is the employee of the management no:1.
5. Management no:2 also filed its written statement and stated that they have been impleaded as party in the present case unnecessary as nothing is shown in the claim against them nor any specific relief has been claimed against the management no:2. It is stated that the claimant himself left the services without any prior intimation on account of which the management no:2 has suffered unnecessary loss as the claimant was deputed with the management no:1 by the management no:2. It is stated that the claimant has committed the breach of trust by leaving the services without any prior information and did not continue his service with the management no:2 despite several calls have been made to the claimant. It is stated that DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 4 management no:2, after receiving the notice from the claimant, the claimant was contacted on telephone a number of time to continue the service at this work place but the claimant without any reason preferred to remain absent from the service. The said notice was replied by the management no:2. It is denied by the management no:2 that in his reply to the notice the management no:2 has not specifically denied the fact that the claimant worked with the management no:1. It is submitted that management no:2 made all the efforts to call back the claimant on duty but it was the claimant who was bent upon not to join his services with answering management. It is submitted by the management no:2 that they have appointed the claimant with his concern and deployed in the office of management no:1 but the salary and other perks were being given to the claimant by the management no:2. It is stated that the claimant has violated the terms of employment signed by him out of his sweet will. It is submitted that claim of the claimant is not maintainable and liable to be dismissed with heavy cost.
6. In his rejoinder to the written statement of the management no:2, the workman has controverted the averments of the management no:2 and reiterated his stated.
7. From the pleadings of the parties the following issues were framed on 26052010: (1) Whether there is any relationship of employer and employee between the workman and management no:1 ?
(2) Whether the claimant is not a workman within the definition of Section 2(s) of I.D. Act in view of the objection raised by management no:2 in preliminary objection no:3 of the WS ? (3) Whether the workman has left the job of management No:2 without any prior intimation ?
(4) Whether the workman was illegally or unjustifiably terminated by the management ?
(5) Relief.
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 5
8. Workman has examined himself as WW1 and filed his evidence by way of affidavit which is exhibited as Ex.WW1/A. In his evidenciary affidavit the workman has reiterated the contents of the statement of claim. The documents are Ex.WW1/1 to Ex.WW1/4. Workman has been cross examined on behalf of both the managements.
9. Management no:1 has examined Sh. Anupam Goel, Authorized Representative of the management no:1 as MW1, who tendered his evidence by way of affidavit Ex.MW1/A bearing his signature at point A and B. He has relied upon the documents mark A i.e. Power of Attorney dt. 27022017. He has been cross examined by the AR of the workman.
10. Management no:2 has also examined Sh. Kamal Bahri, Authorized Representative of the management no:2 as M2W1, who tendered his evidence by way of affidavit Ex.M2W1/1 bearing his signature at point A and B. He has relied upon the documents pertaining to the claimant i.e. Ex.M2W1/A is registration form, resume is Ex.M2W1/B, letter of appointment is Ex. M2W1/C, Cheque dt. 0702 2009 is Ex.M2W1/D, salary slips ( Colly 4 pages) are Ex.M2W1/E and EPF slips are Ex. M2W1/F. He has been cross examined by the authorized representative of the workman.
11. I have heard the authorized representative of the workman as well as managements and my findings on the issues are as under:
12. ISSUE No.2 : Whether the claimant is not a workman within the definition of Section 2(s) of I.D. Act in view of the objection raised by management no:2 in preliminary objection no:3 of the WS ?
Section 2(s), Industrial Disputes Act, defines a workman as follows:
"workman" means any person (including an apprentice) employed in any industry to do skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 6 employment be expressed or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute, but does not include any such person
(i) who is subject to the Army Act, 1950 (46 of 1950), or the Air Force Act, 1950 (45 of 1950), or the Navy (Discipline) Act, 1934 (34 of 1934), or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of powers vested in him, functions mainly of a managerial nature.
The definition therefore provides for workmen to mean persons engaged in manual, supervisory, technical or clerical work in any industry. The manual work in turn may be skilled or unskilled. Altogether therefore there are five categories of people who are within the definition of workman. They are:
(1) Persons who are engaged in skilled manual work; (2) Unskilled manual work;
(3) Supervisory work;
(4) Technical work; and (5) Clerical work.
From the generality of persons comprehended by the definition, four categories of persons are excluded They are:
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 7 (1) Persons who are subject to the Army Act, 1950 or the Air Force Act, 1950 or the Navy Discipline Act, 1950;
(2) Persons employed in the police service or as an officer or other' employee of a prison;
(3) Persons employed mainly in managerial or administrative capacity; and (4) those, being employed in supervisory capacity, draw wages exceeding live hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature.
The predominant nature of the work of the person employed shall be determinative of the question whether he is employed to do any manual, or supervisory or technical or clerical work in view of the decisions of the Supreme Court reported in South Indian Bank v. A.R. Chacko , May & Baker (India) Ltd. v. Their Workmen, Ananda Bazar Patrika v. Its workmen 1969II L.L.J. 670 and Burmah Shell Oil Storage v. Burmah Shell Management If every employee of an industry was to be a workman except those mentioned in the four exceptions, these four classifications need not have been mentioned in the definition and a workman could have been defined as a person employed in an industry except in cases where he was covered by one of the exceptions. The specification of the four types of work obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, not doing any such work would be out of the scope of the word "workman' without having to resort to the exceptions.
In the present case the claimantherein has admitted in his cross examination :
"I had done computer course in Basic and in Web Designing and hardware and software prior to my joining of service. ....... I was DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 8 working in the capacity of Coordinator I used to work only on the files of Personal Loan as mentioned in Clause 2 of Ex. WW1/M. I was accountable only to the RM (Regional Manager) of the management no.1. with management no.1 and nobody was working under me.... The duties mentioned in the TERMS OF EMPLOYMENT dated 21/08/2006 (Ex. WW1/M1) are the duties of Coordinator :
"EMPOWER FINANCIAL SERVICES DUTIES Your main duties will include development of the business of the firm i.e. Personal Loans / Credit Line / LAS / Auto Loans / Liabilities / Credit Cards / Corporate Segment for the clients of the firm and such other services as the Firm may direct from time to time.
Sd/ Manager HR & Administration Unsecured Loans Delhi / NCR"
The MW2 has mentioned in his affidavit that the claimantherein was deployed in the office of the management No.1 in the position of coordinator whose job was to manage coordination between the bank (M1) and its clients which was a managerial job. However, the management has not adduced cogent evidence to show that the workman was discharging functions of administrative or managerial nature. The qualifications of the claimantherein related to technical knowhow of computer hardware / software and wed designing. In the present case the management has failed to establish that the workmanherein was doing any sort of managerial or administrative function.
The workmanherein is duly covered under the definition of "workman" u/s 2(s) of the I.D. Act. Thus the Issue No.1 is decided in favour of the workman and against the management.
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 9
13. ISSUE No.1 "Whether there is any relationship of employer and employee between the workman and management no:1?
It is a settled principle of law that a person who sets up a plea, burden to prove that plea would be upon him. In the case of N.C. John v. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers' Union and Ors. (1973)ILLJ366Ker, the Kerala High Court held:
"The burden of proof being on the workmen to establish the employer employee relationship. An adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer employee relationship."
Again, in the case of Swapan das Gupta and Ors. v. The First Labour Court of West Bengal and Ors. 1975 Lab. I.C. 202 it has been held:
"Where a person asserts that he was a workmen of the company, and it is denied by the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the company but of some other person."
The Hon‟ble Supreme Court in 'Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu‟, AIR 2004 SC 1639 held as under: "47. It is a wellsettled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
The management no:1 (ABN AMRO BANK now Natwest Markets PLC has stated that claimant is not the employee of the management no:1 and as per the appointment letter of the claimant dated 21082006 he was the employee of the management no:2. The management No.2 (EMPOWER Financial Services).
The management no.1 (ABN AMRO BANK now Natwest Markets PLC has contended that the claimantherein was never an employee of the said DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 10 management No.1. The crossexamination of the claimant (crossed by the AR of Management no.2) reveals :
"......No application for the employment was ever given by me to the management no.1 however one of my acquaintances namely Sh. Jitender Shokeen was working with management no.1 in the capacity of team management personal loan who had taken me to the bank and my interview was taken by Sh. Anees Passi who happens to be RM of management no.1. It is correct that I was taken directly to the management no.1 by one of my acquaintances namely Sh. Jitender Shokeen and after my interview got employed with the management no.1. It is correct that management no.2 had nothing to do with my appointment with the management no.1. Sh. Jitender Shokken was working with the management no.1 through management no.2 and on behalf of management no.2. ......... I had not given to my resume to management no.1 rather it was given to management no.2. It is correct that Ex. WW1/M was issued by management no.2 to me. ....It is correct that management no.1 has also not issued at the time of my joining or thereafter....I was accountable to the RM (Regional Manager) of the management no.1. ......I have not attached any salary slip with my claim. It is correct that I have not placed on record any document to show that my salary was ever paid by management no.1. ....... The management no.2 told me that the management no.1 i.e. bank is going to be closed. ...."
The witness MW1 (Sh. Anupam Goel Manager - Operation of ROYAL BANK OF SCOTLAND) has deposed that the claimantherein never worked with the said management.
In the present case the workman has revealed certain facts regarding his direct association with the management no.1 by saying that he was interviewed by the RM of the management no.1 and that he directly reported to the said RM. By laying out the said factevents the workmanherein had discharged its DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 11 primary onus of proof. Next step was for the management no.1 to have adduced further evidence to displace the facts of the workman. However, the said managements have not adduced such evidence to dislodge the assertions of the workman regarding his direct relationship with the managmenet no.1. In Bank of Baroda Vs. Ghemrhai Harjibhai Rabari, 2005(10) SCC 792 the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case, it would be the responsibility of the Management to rebut the same. In that case even though the workman had no letter of appointment, he had established that he had worked for 240 days with the Management. He was claiming to have been working as a driver of the bank and could produce vouchers, which showed that he was paid certain sums towards wages and that the amount had been debited to the account of the bank. With such evidence being produced, the Supreme Court held that the onus has shifted to the bank, which was then responsible to show that despite such payment, there was no relationship of employer and employee between the parties.
Now coming to the contractual aspect of the dealings between the management no.1 and management no.2 regarding the manpower supply from M2 to M1. No contract has been placed on record. The witness M2W1 (Sh. Kamal Bahri from Empower Financial Services) has revealed in his cross examination:
"I am consultant of management no.2. I do not draw any salary. I have the full knowledge of the working of management no.2...I do not remember whether the copy of the contract between management no.1 and management no.2 has been placed on record or not. It is incorrect to suggest that there was no contract between the management no.1 and management no.2 regarding the manpower supply as such the same has not been placed on record.
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 12 .....Management no.2 did not sent any letter in writing to the workman to resume his duties Voln. The management made several calls to the workman and even in the reply to the demand notice the management asked the workman to resume duties...."
The contract between M1 and M2 being sham cannot be ruled out. The Blacks' Law Dictionary, (7th Edn) defines 'sham' as (i) Something that is not what it seems; a counterfeit; (ii) A person who pretends to be something that he or she is not; a faker. The Law Lexicon Dictionary (second Edition, 2001) defines 'sham' as good in appearance but false in facts.
For a sham Contract to be proved before the industrial adjudicator the relationship of employer and employee has to be established which stands established in the present case. In this connection it may be appropriate to refer to the Supreme Court judgment Ram Singh and others V Union Territory, Chandigarh and others 2004 (1) CLR 81 (SC)= 2004 Lab. IC 50 (SC) which has succinctly dealt with two factors namely the 'Control test' and 'integration test' for determining the relationship of employer and employee. The relevant portion of the judgment is set out herein in verbatim for better appreciation and inter alia reads as follows :
"In determining the relationship of employer and employee, no doubt 'control' is one of the important tests but is not to be taken as the sole test. In determining the relationship of employer and employee all other relevant facts and circumstances are required to be considered including the terms and conditions of the contract. It is necessary to take a multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole 'test of control'. In Management of Pratap Press, New Delhi v. Secretary, Delhi Press Workers' Union Delhi, reported in [AIR 1960 SC 1213] it was held:
"While pointing out that it was impossible to lay down any one test as an absolute and invariable test for all cases it observed that the real purpose of these tests would be to find out the true relation between the parts, branches, units etc. This court, however, mentioned certain tests DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 13 which might be useful in deciding whether two units form part of the same establishment. Unity of ownership, unity of management and control, unity of finance and unity of labour, unity of employment and unity of functional "integrity" were the tests which the Court applied in that case......."
In Nath Trader's (India) v. Regional Provident Fund Commissioner (LPA No.1166/2007 decided on 26th February, 2008) the issue that arose for consideration was whether there was any unity of ownership / unity of management, supervision and control visàvis 'Nath Oil Company' (sole proprietorship firm of Mr. Surender Nath dealing in Kerosene Oil) and 'Nath Traders' (partnership firm dealing in LPG). It was held therein:
"14. Therefore, we are of the considered opinion that there is unity of management, supervision and control between the two units. It is also proved on record and established that there is interlinking of and functional integrity between the two units and, therefore, the findings recorded by the learned Single Judge do not need any interference in our hands. We find no merit in this appeal and the same is dismissed, but without any costs."
Now, the relation between the two managementsherein can be considered from several points of view, such as (1) ownership, (2) control and supervision, (3) finance, (4) management and employment, (5) geographical proximity and (6) general unity of purpose and functional integrity. The workmen have adduced sufficient evidence to show that there is functional integrity between the two managementsherein. There is absolutely no doubt that the two managements have direct relationship so as to make them one practically. Therefore it will be proper to hold that all the workmanherein was the workman of both the managements so as to make them the employees of the management no.1 as well.
The workmanherein has already averred that the management no.2 herein i.e. the Empower Financial Services is an associate of the Royal Bank of Scotland ( now Natwest Markets PIC ) and the managementherein has not DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 14 denied that assertion. Moreover, the management no.1 which was initially ABN AMRO BANK was also taken over by the Royal Bank of Scotland ( now Natwest Markets PIC). The irresistible conclusion and the only inference that can be drawn is that the managements no.1 and 2 are practically the same. The workmanherein is undoubtedly the employee of the management no.1 albeit through the management no.2 vide APPOINTMENT / TERMS OF EMPLOYMENT dated 21/08/2006 (Ex. WW1/M1) which indicates a permanent employment with the date of retirement as 58 years.
Thus this ISSUE No. 2 is decided in favour of the workman and against the managementsherein.
14. ISSUE No.3 "Whether the workman has left the job of management No:2 without any prior intimation?
And ISSUE No.4 "Whether the workman was illegally or unjustifiably terminated by the management?
15. The witness M2W1 (Sh. Kamal Bahri from Empower Financial Services) has revealed in his crossexamination:
"I am consultant of management no.2. I do not draw any salary. I have the full knowledge of the working of management no.2.... .....Management no.2 did not sent any letter in writing to the workman to resume his duties Voln. The management made several calls to the workman and even in the reply to the demand notice the management asked the workman to resume duties...."
The Division Bench of The Hon'ble Delhi Court in Shakuntala's Export House (P) Ltd Vs. Secretary (Labour) MANU/DE/ 0541/ 2005 has held that abandonment amounts to misconduct which requires proper inquiry. The judgment of the Single Judge was upheld by the Division Bench is reported as 117 (2005) DLT 479. To the same effect is another judgment in MCD Vs. DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 15 Begh Raj 117(2005) DLT 438 laying down that if the workman had abandoned employment, that would be a ground for holding an enquiry and passing an appropriate order and that having not been done, the action of MCD could not have been sustained.
The Hon'ble Supreme Court also in D.K. Yadav Vs J.M.A. Industries Ltd (1993) 3 SCC 259 has held that even where the standing orders of the employer provide for dismissing the workman from service for unexplained absence, the same has to be read with the principles of natural justice and without conducting domestic inquiry and without giving an opportunity of being heard, termination of service on the said ground cannot be effected. The same view was reiterated in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat AIR 2002 SC 2914 (in this judgment Sakattar Singh mentioned below was distinguished). In V.C. Banaras Hindu University Vs. Shrikant AIR 2006 SC 2304 it was held that although laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of Constitution of India; if the action is found to be illogical in nature, the same cannot be sustained.
In M/s Fateh Chand vs Presiding Officer Labour Court & Anr. 2012 LLR 468 Delhi, our own the Hon'ble High Court observed that 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. It was held to be a case of violation of Section 25F of the Act.
In MCD vs Sukhbir Singh 1994 ILR 332, in case of abandonment of service, it was held that the management was duty bound to conduct an inquiry.
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 16 Reference in this regard may also be made to Shakuntala Export House (P) Ltd. vs P.O. Labour Court X & Anr. 117(2005) DLT 479.
In the case of Shiv Dayal Soin and Sons vs,. The Presiding Officer, Labour Court in LPA 801/2002 decided on 20.12.2007, the Division Bench of the Hon'ble Delhi High Court has held in para 11 thereof which is as follows: "However, it is pertinent to note that a mere accusation that the Workers had abandoned their jobs is not enough to accept the said imputation, degree of proof required to establish abandonment of service, is rather strict and the management in this case has failed miserably to discharge the said burden of proof..." Observation of the Hon'ble Supreme Court in the Case of G.T.Lad v. Chemical and Fibres of India Ltd., reported in (1979) 1 SCC 590 throws great deal of light on this aspect, The Court noted as under:
"5a. Re Question 1: In the Act, we do not find any definition of the expression 'abandonment of service.' In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and word 'abandon' has been explained as meaning 'to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 Edn.) 'abandonment' means 'relinquishment of an interest of claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment.' It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 17 absence is not ordinarily sufficient to constitute an 'abandonment of office'."
In Shiv Dayal Soin and Sons (supra) also relied upon in Buckingham and Carnatic Co. vs. Venkatiah AIR 1964 SC 1272 it was observed :
"abandoning 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 and thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case".
In view of the above discussion, it cannot be said that the workman abandoned his job with the management. The managementherein has not been able to discharge their onus to show that the workmen had abandoned the job by remaining absent. This issue No:3 is decided in favour of workman and against the management.
In view of my observations on issue no:3, it can be safely concluded that the services of the workman was terminated illegally or unjustifiably by the Natwest Markets PLC/management. Hence, the issue no:4 is also decided in favour of the workman and against the management.
16. ISSUE No.5 "Relief"
The workmanherein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits.
The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "re instate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 18 or person had been removed'. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule.
Held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors. (2013) 10 SCC 324. The concept of reinstatement was also discussed therein:
"17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer." The ruling in Deepali Gundu Surwase (supra) relied on at least three larger, three judge bench rulings :
1. Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Pvt Ltd AIR 1979 SC 75;
2. Surendra Kumar Verma v. Central Government Industrial TribunalcumLabour Court AIR 1981 SC 422;
3. General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC591) .
The relevant discussion in Deepali Gundu Surwase (supra) is as follows:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 19
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact.
In view of the above the an Award is passed in favour of the workman and against the management no.1 and 2 including their successor managements by any mode (merger / acquisition / contractual / takeover etc.) or any name with the following directions :
1 Relief of reinstatement granted;
2. Relief of full back wages (as per the last drawn salary) granted / ordered from the 12122008 till date;
3. Relief of the continuity of service alongwtih the consequential benefits granted / ordered w.e.f. the last working day or12122008;
The management no.1 (currently known as "Natwest Markets PLC" has undergone the change of name from "ABN AMRO BANK" to "ROYAL BANK OF SCOTLAND NV" to the current name "Natwest Markets PLC". The above said directions are for the current managements No.1 as well as current management no.2 and shall also include their successor managements / DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 20 corporation / company etc. by any mode (merger / acquisition / contractual / takeover etc.) or any name. File be consigned to record room.
Announced in the open court.
Dated: 12032020 (VEENA RANI ) Presiding Officer Labour Court, Rouse Avenue Courts,New Delhi Judge Code : DL0271 DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 21 IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT, ROUSE AVENUE COURTS , NEW DELHI DID No:2231/2016 ( Old DID No:455 of 2009), Sh. Hitendra Vs. Natwest Markets PLC & Anrs 12032020 Present : Sh. Sunil Sirohi, AR of the workman.
Sh. Anand Kochhar AR for the management no:1.
Sh. Arvind Bhardwaj, counsel for management no:2 with AR. An award is passed separately in favour of the workman and against the managements. File be consigned to Record Room.
Announced in the open court.
Dated: 12032020 ( VEENA RANI ) Presiding Officer Labour Court, Rouse Avenue Courts,New Delhi Judge Code : DL0271 Note: Digital Signature expired on 22022020.
Already applied for renewal/Fresh one.
DID No:1492/2016 ( Old DID No:258 of 2015), Sh. Anand Tyagi Vs. M/s Rockland Engineers Pvt. Ltd.