Delhi District Court
In State Of Haryana vs . Om Prakash & Ors., Reported As (1998) on 4 January, 2007
IN THE COURT OF SH. ALOK AGARWAL
PRESIDING OFFICER LABOUR COURT NO.XVIII
KARKARDOOMA COURT ; DELHI.
OLD ID No.228/02
ID NO.262/06/02
BETWEEN
The workman
Jitender Pal Singh and Kumari Kanchan
C/o General Mazdoor Union North Delhi,
7704, Dharampur Lodge,
Ghanta Ghar, Delhi-7.
AND
The Management
M/s American School of Languages
7255, Ajindra Market, Shakti Nagar Chowk,
Delhi-7.
A W A R D
1.The workman raised a dispute against the management of M/s American School of Languages against illegal termination of his service which came to be referred to this court U/s 10 (1) C of the Industrial Dispute Act Government of NCT of Delhi through its Secretary (Labour) vide reference no. F24 (2015)/2002-Lab 20153-57 dt.08.11.2002 under the following terms of reference :-
"Whether the services of Sh.Jitender Pal Singh son of Sh.Raghuvir Singh & Kumari Kanchan d/o Sh.Dhani Ram, have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/Govt.Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
12. On notice being issued to the parties, the workmen filed a statement of claim stating that they had worked with the management for different periods. The workman Jitender Pal claimed to have worked as a Peon for about five years and the workman Kanchan, as a Receptionist for about three years. They have alleged that they had an unblemished service record, but were still not provided their legally due facilities like appointment letter, minimum wages, annual leave, Overtime allowance etc. They have further alleged that on 19.03.2001, they were both pressurised to resign and on their refusal, their services were terminated withholding their salaries for three months. They sent a demand notice dt.24.05.2001 which was not replied. Conciliation proceedings initiated by them failed due to non cooperation of the management. Claiming that the termination of the service was illegal and that they have been unemployed ever since, despite their efforts, the workmen have prayed for reinstatement with full back wages. Although the statement of claim was drafted in respect of both the workmen, only the workman Jitender Pal Singh has signed the same.
3. The management filed a written statement claiming that the workman Jitender Pal Singh had worked with them only as a temporary part time peon for four hours everyday and that he voluntarily left the services without giving any prior information. It is further alleged that in fact the workman started his own coaching center adopting a similar name as that of the management in the same vicinity, the management has therefore denied any liability to reinstate the workman or to pay him any compensation/wages.
4. The workman filed a rejoinder reiterating his stand as taken in the statement of claim.
5. From the pleadings of the parties following issues were framed by my ld. Predecessor on 27.04.2004:
1. Whether the workman left the service voluntarily as alleged by the management?
2. Whether two workman gainfully employed as alleged by the management?
3. Terms of reference.2
6. The workman filed his own affidavit as WW-1 while the management examined as many as five witnesses namely Mrs.Harjeet Kaur proprietor as MW-1, Gurinder Singh husband of the proprietor as MW-2, Jagdish an alleged partner of the workman in the new Institute as MW-3, Gurpreet Singh and Manjeet Singh, neighbourers as MW-4 & 5 respectively. The workman was duly cross-examined by the ld.AR of the management while he did not appear to cross-examine the witnesses of the management.
7. None appeared for the workman during final arguments also. I have therefore heard Sh.L.M.L.Bisht, ld.AR of the management and have gone through the evidence on record. My findings on the issues are as under :
ISSUE NO.2 Since the whole emphasis in the evidence of the management is on the fact that the workman had opened his own coaching institute and also because the findings on this issue would be relevant for the purpose of Issue No.1, this issue is taken up first.
8. The workman has deposed in his affidavit that his service was terminated on 30.04.2001 and that he has been unemployed thereafter. He has denied the suggestion that he opened his own institute by the name of New American School of Languages. However, all the management's witnesses namely MW-1 to 5 have deposed that the workman opened his own coaching center under the name & style of New American School of Languages at UG-1, Shakti Kiran Building, Shakti Nagar Chowk, Delhi, in the month of May, 2001. The management has produced one Pamphlet in the name of the said Institute and one Newspaper Advertisement as MW- 3/1 & 2 respectively. The Pamphlets shows the Telephone No.of the Institute as 3989775. The management has also produced in original, a Telephone Bill of this number which is in the name of Jitender Pal. The workman has neither cross-examined these witnesses despite opportunities granted to him, nor has rebutted the documentary evidence in this regard. I, therefore find no challenge to the depositions of these witnesses that the workman has been running his own rival Institute since May 2001 itself. Issue No.2 is therefore decided in favour of the management.
3ISSUE NO.1
9. The workman has not mentioned as to in what manner his service was terminated by the management. Admittedly, there is no letter of termination. He has not deposed as to who had asked him not to join his duties after 30.04.2001. The management has on the other hand proved that the workman has been running his own coaching institute w.e.f. May 2001and has therefore alleged that he abandoned the job himself.
10. The distinction between retrenchment and abandonment has been explained by the Hon'ble Supreme Court in State of Haryana vs. Om Prakash & Ors., reported as (1998) 8 SCC 733. The relevant portion may be quoted from para 3 of the judgment as follows :
3. .....Retrenchment within the meaning of Section 2 (00) means termination by the employer of the service of the workman for any reason whatsoever. Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression "retrenchment" in Section 2(oo) of the Act. There was nothing of the sort in the instant case. It was the workman who ceased to report for duty and even after he ceased to report for duty, it is not his case that at any point of time he reported for duty and he was refused work. He straightaway proceeded to invoke the provisions of the Act and, therefore, this is a case in which the employer has done nothing whatsoever to put an end to his employment and hence the case does not fall within the meaning of Section 2(oo) of the Act. Therefore, the case does not attract Section 2(oo), nor does it satisfy the requirements of Section- 25F".
11. In the case on hand, no overt act has been imputed to the management in terminating the services of the workman.
Moreover, the fact that the workman started his own coaching Institute in the next month itself, raises a strong presumption that 4 he himself abandoned his previous service for the purpose of starting his own business. The workman has not rebutted this presumption since he has not even cross-examined the witnesses of the management. I therefore agree with the ld.AR of the management that it was the workman who had abandoned his service on his own. Issue No.1 is also therefore decided in favour of the management.
ISSUE NO.3
12. By the terms of reference, this court has been called upon to decide if the services of the workman have been illegally terminated. However, in view of my findings on issue no.1, the management had no occasion to terminate the services of the workman whether illegally or otherwise. Issue No.3 is therefore decided against the workman.
RELIEF
13. In view of the above discussion, the workman is not entitled to any relief in these proceedings. Reference is answered accordingly. Award is passed in the above terms. Copies of the award be sent to the appropriate Govt.as per law. File be consigned to RR.
Announced in the open court on this 4th day of Jan., 2007.
(ALOK AGARWAL) PRESIDING OFFICER LABOUR COURTS NO.XVIII KKD COURTS: DELHI.
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