Delhi District Court
Manisha Sehgal vs M/S. Jain Co-Operative Bank Ltd on 6 April, 2024
IN THE COURT OF SHRI ARUN GOEL,
PRESIDING OFFICER : LABOUR COURT - X
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 2539/19
Smt. Manisha Sehgal
W/o Sh. Sheetal Sehgal,
R/o N6, Parwana Apartment, Flat No. 52,
Sector9. Rohini, Delhi110085.
C/o Sh. S.K. Jain & Sh. Virender Singh,
Chamber No. 363, Western Wing,
Tis Hazari Court, Delhi110054.
... Workman
Versus
M/s. Jain Cooperative Bank Ltd.,
80, Darya Ganj, New Delhi110002
... Management
Date of institution of the case : 16.10.2019
Date of passing the Award : 06.04.2024
A W A R D:
1.A reference No. F.24(201)/18/Ref.CD/Lab./889 dated 22.08.2019 was received from appropriate government for adjudication and disposal of industrial dispute between the aforesaid claimant and the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 1/38management by formulating the following terms of reference :
"Whether the dispute between Smt. Manisha Sehgal W/o Sh. Sheetal Sehgal Age around 44 years and M/s Jain Co operative Bank Ltd. falls under the jurisdiction of Govt. of NCT of Delhi and if so, whether Ms. Manisha Sehgal abandoned her job of her own or her services have been illegally terminated by the management and if so, what relief is she entitled and what directions are necessary in this respect?"
2. A notice of the aforesaid reference was sent to the claimant for filing of her statement of claim on 16.10.2019. On 15.01.2020, AR for the claimant appeared and filed statement of claim wherein it is stated that claimant was working with the Management at the post of Clerk/Casher since 05.10.1999 and her last drawn wages were Rs.34,699/ per month.
3. It is stated by the claimant that during her tenure of service, she performed her duties with utmost dedication, sincerity and to her best ability. Lastly, she was posted at Daryaganj Branch, Delhi and her past record was flawless throughout her employment period.
4. It is further stated in the claim that the management of the bank during the period of demonetization, i.e. w.e.f. 08.11.2016 pressurized each and every employee including the claimant to do LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 2/38some illegal acts while performing their duties, which the claimant and other employees of the bank were not supposed to follow, as a result of which most of the employees of the bank including the claimant got victim of malpractices of the management.
5. It is further stated in the claim that the prior to demonetization, about 105 employees were working in different branches of the bank, out of which 7080 employees have thrown out of their services. During the period of demonetization, the Management of the bank was in search of suitable opportunity to implicate the employees of the bank in false, baseless and frivolous allegations and those employees to whom the Management of Bank wanted to sack from their services by shunting them out and also to provide shelter to those employees who were henchmen/so called loyal to the Management/Bank official and those were ready to do illegal acts as per wishes, dictates and desires of the Management.
6. It is further stated that the Management of the Bank started hatching conspiracy against the employees of the bank with a predetermined motive to victimize them and to throw them out of the bank premises, while taking advantage of demonetization. The Management in order to penalize the workman started reducing the salary of the employees and the same were based on "productivity LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 3/38Linked wages" meaning thereby 30% of earned wages were used to be withheld under the pretext that the same shall be paid on the basis of Productivity.
7. It is further stated that employees of the bank, against mal practices of the managing committee as well as Bank officials of Management, decided to call a meeting of the employees of the bank and a joint meeting of all the employees was held. It was unanimously decided to declare a "Pen Down Strike" in the bank w.e.f. 16.04.2018 and to this effect, a mail to R.B.I., RCS and CEO of the bank was sent on 15.04.2018 informing them with regard to "Pen Down Strike" w.e.f. 16.04.2018, letters were also delivered to the aforesaid Authorities as well as to the concerned Police Station of Daryaganj.
8. It is further stated that on 16.04.2018, the claimant and other employees of the bank, in their different branches went to resume their duties, but to their surprise by that time, the officials of the bank/managing committee hired the services of Bouncers and they did not allow the claimant and other employees of the bank, to enter into the bank premises. After finding no other alternative, the claimant and other employees of the Bank started protesting against the malpractices of the bank officials, outside the bank premises LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 4/38and this agitation remained continue.
9. It is further stated that the claimant was issued a show cause notice dated 23.04.2018, alleging therein that she has been absenting from the place of her duty without proper permission since 16.04.2018. The said show cause notice was replied by the claimant vide reply dated 01.05.2018 apprising the management the facts, detailed above, the contents of which were self explanatory and were based on the factual position, requesting therein to withdraw the show cause notice and to drop disciplinary proceedings. However, despite after the self explanatory reply of the claimant, the Management of Bank issued a termination order dated 02.05.2018 on the ground that she has been absenting from the place of duty without proper permission since 16.04.2018 and in the said circumstances, the competent authority of the bank has decided to declare her voluntarily abandoned/resigned from employment of her own volition.
10. It is further stated that the services of the claimant were terminated under the garb of voluntarily abandoned/resigned from employment and that the claimant had never remained absent from duty at any point of time nor she had any intention to leave the employment of her own or to tender resignation. To the contrary, the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 5/38claimant was on "Pen Down Strike" and to this effect, prior intimation and information was sent to the Bank Officials as well as to the concerned Authorities, mentioned above, but the management with the help of hired Gundas refused the entry of the bank employees in the bank premises on 16.04.2018 and even subsequently, they were not allowed entry in the bank. The claimant and other employees of the bank have no other option except to remain outside the gate of the bank and continue their protest against the malpractices adopted by the management as detailed above.
11. That the claimant had never any intention to leave or abandoned the employment, as she had never remained absent from duty nor abandoned the services voluntarily. To the contrary, the services of claimant were terminated illegally and/or unjustifiably vide termination order dated 02.05.2018 that too without issuing any Charge Sheet or holding any domestic enquiry. It is further stated that the management while terminating the services of the claimant had neither paid nor offered to pay notice pay in lieu of notice and service compensation rendering the termination violative of the mandatory provisions of Sec.25F of the Industrial Disputes Act, 1947 for want of noncompliance and adherence of the provisions contained therein in the said Act and that the management while terminating the services of the workman had never followed the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 6/38mandatory principles of "Last Come First Go" and possibilities of recruiting new hands on the same post cannot be ruled out. Besides this, the present termination is based on victimization and amounts to unfair labour practice as defined under "Vth Schedule of the I.D. Act, 1947". It is further stated in the claimant that almost 70 employees of the bank were removed from their services on whimsical grounds, as some employees were dismissed and some were compelled/forced to tender their resignation or opt for V.R.S and that the present termination order dated 02.05.2018 has not been issued by the Competent Authority but was issued by the General Manager, who was not the Appointing Authority of the workman.
12. It is further stated that the claimant submitted an appeal dated 09.05.2018 to the Appellate Authority against the illegal and arbitrary termination of services to the management requesting therein to consider the appeal on merits and setaside the impugned order dated 02.05.2018, as issued by the General Manager but the decision on the appeal of the claimant is arbitrary without assigning any reason or justification and therefore is apparently illegal besides being bad in law.
13. It is further submitted that the claimant being aggrieved of the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 7/38aforesaid wrongful, illegal and arbitrary action of the management sent a legal notice dated 04.10.2018 to the Management through S.K. Jain, Advocate under speed post requesting therein to setaside the termination order and to reinstate the workman with continuity of service and full back wages but the management after having received the same neither considered the just, genuine and legal legitimate demands of the workman nor bothered to submit a reply to the said legal notice.
14. That the claimant after having no other alternative initiated the conciliation proceedings by way of filing a statement of claim before the Conciliation Officer, Pusa, New Delhi, but the Conciliation was resulted in failure on account of non cooperative, vindictive and adamant approach of the management. Hence, a reference was made to the court.
15. It is further stated that the claimant is unemployed since the date of wrongful and illegal termination of services, despite her best efforts to seek employment. Therefore, the claimant prayed that the Management be directed to reinstate him to services with full back wages and consequential benefits.
16. A notice of the claim statement, filed on behalf of the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 8/38claimant, was supplied to the management on 15.01.2020. On 27.02.2020, Sh. Sunny Malik, Legal Officer appeared and filed written statement on behalf of the Management.
17. In the written statement it is submitted that the management in this case is a Bank which has avowed objective of being a transparent, just, fair, accountable, equitable and customer oriented and customer centric organization which is covered under the definition under section 5(b) of the Banking Regulation Act, 1949 as it receives deposits of money from the public and provides all banking services including withdrawal by cheque, draft order or otherwise and the dispute squarely falls within the domain of Central Government. Relying on the judgements titled as Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd., 2020 SCC Online SC 431 and State Bank of India vs. The Union of India & Ors. (Civil Writ Jurisdiction Case No. 14583 of 2016), M/s. Hindustan Unilever Ltd. vs. The Presiding Officer (W.P. No. 33610 of 2013) decided on 25.09.2019, Vijay S. Sathaye vs. Indian Airlines Limited and Ors (2013) 10 SCC 253, it is further submitted that the present industrial dispute is not within the jurisdiction of Govt. of Delhi and the entire case of the workman is liable to be dismissed.
LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 9/3818. It is further stated in the written statement that the claimant has not disclosed the material facts as to why she remained absent from the services against the bank services rules. It is further stated that the claimant was an employee of the Management's Cooperative Bank under Delhi Cooperative Societies Act (DCS Act) and was working on the post of Clerk cum cashier and that there is no industrial dispute between the claimant and the Management Bank as the claimant was habitual of abandoning her duties towards the Management Bank at her own will. It is further stated that she without proper intimation (even to her immediate officer) had absented from the place of her duty and taken part in Dharna's held outside the branches of Management bank since 16.4.2018 and this fact was confirmed by herself by an email dated 15.04.2018.
19. It is further stated that due to claimant's conduct, the Management Bank unwillingly issued two showcause notices dated 17.04.2018 bearing no. JCB/HO/Mail and dated 23.04.2018 bearing no. JCB/5602/HO/18 respectively asking the claimant to join her services, but no reply was ever received by the Management Bank till date and she remained absented from her duties between the period of 16.04.2018 to 01.05.2018 and intentionally ignored the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 10/38above show cause notices issued to the claimant. It is further stated that due to this conduct, the competent authority of the Management bank decided to declare her to have voluntarily abandon/resigned from her employment from the date of her unauthorized absence from her duties i.e., 16.04.2018 in terms of relevant provisions of Staff Service Rules, which had been duly approved by the management committee as per Section 135 of DCS Act2003, and the same was duly informed to her vide letter dated 02.05.2018 bearing no. JCB/HO/2018/5642.
20. It is further submitted that after passing the above order dated 02.05.2018, the claimant gave a reply in the evening of 02.05.2018 in the bank vide letter dated 01.05.2018. Thereafter, claimant filed an appeal dated 09.05.2018 before the competent authority and she admitted that she was in pendown protest from 16.04.2018 and had informed the same to the Management Bank via email sent on 15.04.2018. The said appeal was disposed off as no satisfactory reply given by the claimant in her defence as claimant failed to disclose why she remained absent from her duties and what was the reason to ignore the show cause notice duly served upon her by the management. It is further stated that the Staff Service Rules of the Management Bank does not permit the employees of the bank to be involved in any kindly of strike/dharna/protest and it caused LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 11/38irreparable loss to the reputation and business of the Management Bank and prayed that the claim of the claimant is liable to be dismissed with heavy cost.
21. Rejoinder has not been filed on behalf of the workman despite opportunity. After completion of pleadings, following issues were settled on 29.09.2020 : "(i) Whether the dispute between workman and management falls under the jurisdiction of Govt of NCT of Delhi? OPW.
(ii) If issue no.1 is decided in affirmative, whether workman abandoned th services on his/her own and voluntarily retired? OPM.
(iii) Whether the services of workman have been terminated illegally and unjustifiably? OPW.
(iv) Relief."
22. Thereafter, the matter was listed for workman evidence. The claimant examined herself as WW1 and tendered her evidence by way of affidavit Ex. WW1/A. She has relied upon the following documents: (i) letter dated 14.04.2018 address to the DCP, Delhi Police, Daryaganj, New Delhi110002 Ex.WW1/1, (ii) Chief Executive Officer, Jain Cooperative Bank. Copy of the same was LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 12/38also send to RBI, New Delhi110001 Ex. WW1/2 (Colly), (iii) Three photocopies of mail Mark A, (iv) Letter dated 18.04.2018 send to the Registrar of Cooperative Society, Delhi, and the copy was also send to the RBI Ex.WW1/4, (v) Letter dated 01.05.2018, address to the GM, Jain Cooperative Bank Ltd., and copy of which was also send to Jain Cooperative Bank Ex. WW1/5, (vi) Letter send to the Chairman, Jain Co operative Bank. Copy of which was also send to Registrar Cooperative Society, Government of MCD, Delhi and RBI Ex.WW1/6, (vii) Termination Order dated 02.05.2018, issued by the management to the workman Ex. WW1/7, (viii) Copy of appeal dated 09.05.2018, made by the workman to the appellate authority, Jain Cooperative Bank Ltd Ex. WW1/8 (colly along with reminder dated 11.06.2018 made to the appellate authority), (ix) Copy of legal Demand Notice along with original postal receipt is Colly Ex. WW1/9, (x) Order dated 06.12.2018, issued by the appellate authority, rejecting the appeal of the claimant Ex. WW1/10, (xi) Photocopy of Statement of claim filed by the workman before the conciliation officer, Central District, New Delhi and Ex. WW1/11.
23. Thereafter, WW1 was cross examined by Sh. Varun Thakur, AR for the management. During cross examination, WW1 stated that she joined bank in the year December 1997 and got permanent LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 13/38in year 1999. To a query put by AR for the management that post demonetization the management of the bank started pressuring each and every employee of the bank to perform their duties as per their wishes, WW1 replied that one order was circulated by the bank mentioning therein that all the employees were to follow the directions of the management. She further voluntarily replied that irrespective of the fact whether said instructions were legal or illegal. To the further query put by AR for the Management whether WW1 was in any manner adversely affected by the introduction of the concept of productivity linked wages, she replied that she cannot say whether or not she was adversely affected as some times she used to take leave due to family circumstances and during that period she used to be granted leave without salary. During further cross examination, WW1 further stated that she had referred in para no. 5 of her affidavit that she went on "pen down strike" and she mean by the same that employees were visiting and sitting at the work place but not performing their duties. She further stated that she joined "pen down strike" because all the employees were forcibly made to do illegal activities and certain employees were also illegally terminated. WW1 further stated that she and other employees felt that they may also be illegally terminated and asked to be indulged into illegal activities, therefore to protest against the same, she joined "pen down strike". They had planned to continue LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 14/38"pen down strike" for 13 days to give a message to management.
24. To a query put by AR for the management whether it was correct that WW1 was told by the bank to join the duties by the letter dated 23.04.2018 Ex.WW1/10, she replied in affirmative that she had received Ex.WW1/10 whereby bank had asked her to join the duties.
25. Thereafter, workman evidence was closed vide order dated 20.07.2022 and the matter was listed for management evidence.
26. On 24.08.2022, MW1 Sh. Parmender Kumar Jain had tendered his evidence by way of affidavit Ex. MW1/A. He relied upon the following documents: (i) Authorisation Letter dated 01.08.2022 Ex.DW1/1, (ii) Copy of Memorandum dated 04.10.2022 Ex.DW1/2, (iii) Copy of SCN dated 17.04.2018 and 23.04.2018 Ex.DW1/3 (colly.), (iv) Copy of Order dated 02.05.2018 Ex.DW1/4,
(v) Copy of Reply dated 01.05.2018 Ex.DW1/5, (vi) Copy of appeal dated 09.05.2018, reminder letter dated 11.06.2018 and order dated 06.12.2018 Ex.DW1/6 (colly).
27. Thereafter, MW1 was cross examined by Sh. S.K. Jain, AR for the claimant. During cross examination, MW1 stated that at the LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 15/38time of protest , he was working as Clerk in the bank. To a query put by AR for the claimant whether the management was aware in respect of the protest scheduled to be held w.e.f. 16.04.2018 prior to the date of protest, MW1 replied in affirmative that bank was aware of the protest due to mail received on 15.04.2018 in evening at 6.18 P.M for "Pen Down Strike". MW1 admitted that photocopy of mails were already placed on record and were marked as 'Mark A' and the same were exhibited as MW1/W1 and MW1/W2.
28. During further cross examination, MW1 stated that the management did not issue any specific chargesheet in respect of the allegations leveled in the showcause notice on 23.04.2018 and that he do not know whether any enquiry was constituted against the claimant for the allegations levelled in the show cause notice dated 23.04.2018. MW1 further replied that he cannot tell the exact time as to when the reply to the demand notice i.e. Ex. WW1/5 was received by the bank. However, the DAK was received by the bank official in the working hours i.e. up to 5.00 PM. He again replied that the DAK may be received even after 5.00 PM in case if the staff of the bank was available beyond 5.00 PM. MW1 denied the suggestion that the claimant never absented from duties nor she abandoned her employment. He further denied the suggestion that the entry of the claimant was blocked by the bouncers when she LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 16/38went to report for duty on 16.04.2018 and on subsequent dates also. MW1 admitted that after 02.05.2018, the claimant was never offered by the management to join her services till date.
29. Thereafter, on 24.08.2022 AR for the Management has closed Management Evidence and the matter was listed for final arguments.
30. Final arguments were heard from both the parties. Written submissions have also been filed by both the parties along with the relevant judgments. File perused.
31. In support of his submissions, AR for the workman has relied upon the following judgments:
(i) Bharat Coop. Bank (Mumbai) Ltd. vs. Coop. Bank Employees Union; (ii) AIR 1979 S.C. 582 G.T. Lad and Others vs. Chemicals and Fibres India Ltd (iii) M/s.
Scooters India Ltd. v. M. Mohammad Yaqub 2001 LLR 54 Supreme Court of India;
(iv) D.K. Yadav vs. M/s. J.M.A. Industries Ltd., decided on 07.05.1993;
(v) AIR 2002 S.C. Uptron India Ltd. vs. Shammi Bhan & Anr;
(vi) 2020 LLR 754 Delhi High Court 'Jagdish Chander vs. Delhi Transport Corporation;
LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 17/38(vii) Deepali Gundu Surwase vs. Kranti Junior Adhyapak & Ors. Supreme Court of India, Civil Appeal No. 6767 OF 2013;
(viii) Syndicate Bank & Anr. Vs. K. Umesh Naik reported in FLR94 (69) 806 S.C.;
(ix) State Bank Staff Union Madras Versus The State Bank of India 19.12.1990 (1991) ILL.J. 163 MAD. (1992);
(x) Civil Appeal No. 2393 of 2022 Armed Force Ex. Officers Multi Service Express Society Ltd. Vs. Rashtriya Mazdoor Sangh (INTUC) S.C.I. 4 (2006) 08 DEL CK 0086;
(xi) Delhi High Court Case No. LPA 1630 OF 2005 D.T.C. VS. Jag Bhushan Lal & Ors. vs. Delhi Transport Corporation vs. DTC Mazdoor Congress 1991 AIR101 (SC);
(xii) Morarji Gokuldas Spining and Weaving Co. Ltd. Vs. Maruti Yeshwant Narvekar and Others 2000 LLR 63 (Bombay High Court);
(xiii)G.T. Lad and Ors. vs. Chemicals and Fibres India Ltd, AIR 1979 SC 582;
(xiv) M/s. Scooters India Ltd. vs. M. Mohammad Yaqub 2001 LLR 54, Supreme Court of India;
(xv) Sonepat Coop Sugar Mills vs. Presiding Officer, LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 18/38Labour Court decided on 14th May, 1986 (Punjab & Haryana High Court);
(xvi) K.A. Annamma Vs. The Secy, Cochin (S.C.) dt. 12th January 2018;
(xvii) Maharashtryo State Cooperative Housing Finance Corporative Society Hd. (S.c) Civil appeal No 1488 of 2017;
(xviii) Survarnayug Sahakari Bank Ltd And others Vs. Suresh Shivajirao bale and others (2023) 10 Bom Ck 0018 dated 09/12/2023;
32. In support of his submissions, AR for the management has relied upon the following judgements:
(i) Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd., 2020 SCC Online SC 431;
(ii) State Bank of India vs. The Union of India & Ors.
(Civil Writ Jurisdiction Case No. 14583 of 2016);
(iii) M/s. Hindustan Unilever Ltd. vs. The Presiding Officer (W.P. No. 33610 of 2013) decided on 25.09.2019;
(iv) Vijay S. Sathaye vs. Indian Airlines Limited and Ors (2013) 10 SCC 253;
33. Now, in the light of evidence available on record and LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 19/38submissions made by the parties, my issuewise findings are as under: ISSUE NO.1 :
34. The first issue is regarding jurisdiction. In the reference received from appropriate government, one of the terms of reference is, whether the dispute between the claimant and the management falls under the jurisdiction of government of NCT of Delhi. The management in this case has taken the objection regarding the jurisdiction of Government of NCT of Delhi to make reference. It is submitted by the management that the management is a banking company engaged in the business of banking. In that case, the appropriate government for making a reference is the Central Government, while in this case the reference has been made by the Government of NCT of Delhi. So the reference has been made without jurisdiction.
35. The claimant on the other hand has opposed this contention of the management. It is submitted on behalf of the claimant that government of NCT has jurisdiction to make a reference and the objection raised by the management is not tenable.
36. Before proceeding further it is relevant to have the judgment of the Hon'ble Delhi High Court titled as "Delhi v. Mahavir, 2002 LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 20/38SCC OnLine Del 1528, wherein the Hon'ble Delhi High Court has observed as follows:
"24. Having regard to the fact that the Lt. Governor is the agent of the President of India, he for all intent and purport would be the Central Govt, in relation to statutes which are applicable to NCT of Delhi including Industrial Disputes Act."
37. A similar objection regarding jurisdiction about making reference was raised in a case titled National Buildings Construction Corporation Ltd., New Delhi Versus M.K. Jain and others 1980 SCC OnLine Del 504 wherein the Hon'ble High Court has held as follows:
"11. Even otherwise no exception could be taken to the order of reference, even if it be assumed that Central Government was the appropriate Government, inasmuch as the distinction between the Central and the State Governments in relation to the Union Territory in our constitutional framework is rendered illusory. Union Territory is administered by the President of India under Art. 239 of the Constitution of India, acting to such extent as he thinks fit, through the Administrator, to be appointed by him. [n the case of a Union Territory, there is an amalgamation of the constitutional classification of legislative and executive powers between the Centre and the States. According to Section 3(8) of the General Clauses Act, "Central Government" in relation to the administration of a Union Territory means the Administrator acting within the scope of authority given to LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..Page 21/38
him under Article 239 of the Constitution of India and in terms of Section 3(60) of the General Clauses Act, "State Government", as respects anything done or to be done in a Union Territory, means the Central Government. In the case of a Union Territory, therefore, the Central and State Governments merge and it is immaterial whether an order of reference is made by one or the other. This contention must, therefore, fail."
38. Thus, in view of the above settled law, both Central Government and State Government merge in case of Union Territory. Delhi is a Union Territory, So reference can be made either by Central Government or State Government and there is no difference between them. Thus, the reference made by the Government of NCT of Delhi is perfectly valid and hence, is within its jurisdiction. Hence, this issue is decided in favour of the claimant.
ISSUE NO.2:
39. The onus to prove this issue was upon the management. The Management has stated that the claimant in this case had abandoned his job as she had been absenting from her place of duty without permission since 16.04.2018. A show cause notice dated 17.04.2018 and 23.04.2018 Ex.DW1/3 (colly) was issued by the management to the claimant to join her duty but no reply was received within time and as per the Service Rule applicable to the workman, she had been LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 22/38absenting from her duty for more than 15 days, hence it is a case of abandonment and the management vide order 02.05.2018 Ex.DW1/4 had terminated the services of the claimant on the ground of voluntarily abandoned/resigned. An appeal had been filed by the claimant dated 09.05.2018 Ex.DW1/6 and the same was dismissed vide order dated 06.12.2018, wherein the management has held that the claimant had abandoned her employment as per Section 5 of the Staff Service Rules. It was argued by the AR for the management that as per Section 5 of the Staff Service Rules, an employee if remain continuously absent for 15 days without prior intimation or permission, the competent authority can declare that employee has abandoned/resigned his employment and he ceases to be in the employment of the management and it has been done in the case of the claimant.
40. Before proceeding further, it is relevant to have Section 5 of the Staff Service Rules before us.
"Section5: Abandonment of Employment An employee who remains absent either without prior intimation or permission continuously for a period exceeding fifteen days shall at the discretion of the Competent Authority be declared to have voluntarily abandoned / resigned from the employment of his/her own volition and be treated as having ceased to be in the employment of the Bank."
LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 23/3841. Perusal of Section 5 on which reliance has been placed by the management, speaks of absence from duty continuously for a period of 15 days, however, the relevant point in Section 5 is that the absence should be without prior intimation or permission. The point in consideration in this case is whether there was prior intimation to the management about the absence of the claimant from duty. The management in this case has not denied that they have received letters Ex.WW1/1 dated 14.04.2018 and Ex.WW1/2 dated 16.04.2018 (signed by employee of the Management including claimant) along with three emails Ex.WW1/3 (colly) all dated 15.04.2018, wherein the employees of the Management have informed it that they are proceeding on an agitation which will be started from 16.04.2018 and it will be held outside the premises of the bank. In that case, Management had a prior intimation regarding the fact that the claimant will absent from her duty from 16.04.2018 as she was engaged in a protest alongwith other employees against the management. Thus, the contention of the management that they had no prior intimation about the absence of the claimant from duty is not tenable.
42. The management has also alleged that there is abandonment of service by the claimant and show cause notices [DW1/3 (colly)] LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 24/38were issued to the claimant to join her duty but the claimant failed to give reply to the said notice within time and had not returned to her employment. It is further claimed that it shows that there is abandonment of job by the claimant.
43. The law regarding the abandonment of services by an employee and how it is to be inferred is explained by Hon'ble Supreme Court in case titled as G.T. Lad v. Chemical and Fibres of India Ltd., (1979) 1 SCC 590 wherein Court observed as follows.
"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 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 or 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 or 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 absence is not ordinarily sufficient to constitute LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 25/38an "abandonment of office".
6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham & Carnatic Co. v. Venkatiah [AIR 1964 SC 1272 : (1964) 4 SCR 265 : (1963) 2 LLJ 638 : (196364) 25 FJR 25] it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to a employee without adequate evidence in that behalf. 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.
Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra case[Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303] , can be legitimately said to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could, by no stretch of imagination, LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 26/38be construed as voluntary abandonment by them of the Company's service. In Express Newspapers (P) Limited v. Michael Mark [AIR 1963 SC 1141 : (1963) 3 SCR 405 : (1962) 2 LLJ 220 : 22 FJR 346] , which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants' absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants."
44. Perusal of the above stated law as laid down by the Hon'ble Supreme Court reveals that following two points emerge
1. Abandonment or Relinquishment of service is a question of intention and such intention cannot be attributed to employee without adequate evidence in that regard and the onus is upon the management to prove that there was animus on the part of the claimant to abandoned the services of the management.
2. Participation in a peaceful strike does not amount to abandonment of service.
45. In this case, the management had issued two notices Ex.DW1/3 (colly) dated 17.04.2018 and 23.04.2018. Perusal of the notice dated 23.04.2018 reveals that the claimant was given 7 days to file the reply and the notice is dated 23.04.2018. The notice as per postal receipt was sent through post on 24.04.2018 at 14.11 hours. The LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 27/38management has not filed on record the tracking report to prove as to when the said notice was received by the claimant.
46. The claimant in her reply dated 01.02.2015 has stated that it was received on 27.04.2018 and there is no evidence produced on behalf of the Management to rebut it. In that case, the claimant had time to file her reply till 03.05.2018, however, the Management has passed the order of termination before the expiry of the time to give reply which is clear violation of principle of natural justice. It also shows Management had made up their mind to terminate the services of the claimant what ever may be the reason given by her in reply. Besides the perusal of the reply reveals that the claimant had mentioned about being on protest along with other coworkers. The management without taking into consideration reply had dismissed the claimant from duty vide order dated 02.05.2018 Ex.WW1/7 . Moreover, filing of the reply with in prescribe period shows intention of the claimant to continue with his employment. The contents of it also does not any intention on the part of the claimant that she wants to abandon her job or has no intention to continue the employer employee relationship between the parties. Further appeal Ex.WW1/A dated 09.05.2018 has been filed wherein the claimant had challenged order of her dismissal. She had further taken action under the ID Act and filed conciliation proceedings. Though they LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 28/38were unsuccessful and a reference has been made to the court. This conduct of the claimant clearly reveals that there is no intention on the part of the claimant to abandoned her job. She had continuously tried to get the order of the termination set aside. The conduct of her, in filling reply to show case notice in prescribed time, filling appeal within specific period, filling reminder to the appeals, issuing notice to the management to set aside the order of dismissal, taking proceeding under the ID Act, raising industrial dispute clearly shows that there is no animus on the part of the claimant to abandon her job.
47. The claimant has clearly informed the Management that she is taking part in the Strike and the Management is aware of it. The Management has held that participation in strike amount to abandonment which is clearly against the law laid down by the Hon'ble Supreme Court. The Management has not produced any evidence to show that the strike in which the claimant participated was not peaceful. Thus, the management has not been able to prove that the claimant had abandoned her job, hence, this issue is decided in favour of the claimant and against the management.
ISSUE NO.3:
48. The onus to prove this issue was upon the claimant. As per LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 29/38my finding on issue no.2, it has been held that there is no abandonment on the part of the claimant. The management has terminated the job of the claimant vide order dated 02.05.2018 (Ex. DW1/4) on the ground of abandonment. However, during final arguments, management had also raised another objection about the illegality of the strike conducted by the workers. It is also relevant to mention that the claimant had filed the appeal against the termination order and the same was decided vide order dated 06.12.2018 and in the said order also, the ground taken by the management is regarding abandonment of the employment and not regarding the illegality of the strike, which was done by the workers. It was submitted on behalf of the management that the claimant along with coworkers went on strike on 16.04.2018, however, notice of the strike was given only on 15.04.2018, as the management is a public utility service and as per Section 22 of the ID Act, notice of 14 days is required in case of public utility service. In this case, the worker had given notice only one day prior to the date of strike i.e., on 15.04.2018 while the strike had started on 16.04.2018, in that case the strike done by the worker was illegal. Before proceeding further it is relevant to have Section 22 of the ID Act before us.
"22. Prohibition of strikes and lockouts.--(1) No person employed in a public utility service shall go on strike in LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..Page 30/38
breach of contract--
(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. ............."
49. Section 22 of the ID Act provides that 14 days notice is required to be given, in case of person employed in public utility service if that person wishes to go on a strike. The public utility service is defined under Section 2(n) of the ID Act. it states as follows:
" (n) "public utility service" means--
(i).......
(ii) .......
(iii).............
(iv)..........
(v).......
(vi) any industry specified in the [First Schedule] which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification: Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..Page 31/38
requires such extension;
50. Section 2(n) states that the appropriate government may declare an industry to be a public utility service by notifying it under first schedule of ID Act. Perusal of the schedule 1 reveals that the banking has been declared as Public Utility Services. The Management is engaged in the business of banking, so it is a Public Utility Services under the provisions of the ID Act. Section 22, of the ID Act requires a notice of at least 14 days be given before the strike. However, in this case 14 days notice has not been given by the claimant. Section 24 of the ID Act provides that strike commenced in contravention of Section 22 is illegal.
51. Section 26 deals with penalty for illegal strikes and lockouts, the same is reproduced as below:
"26. Penalty for illegal strikes and lockouts.--(1) Any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both. (2) Any employer who commences, continues, or otherwise acts in furtherance of a lockout which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both."
LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 32/3852. Perusal of Section 26 reveals that in case there is illegal strike by workman, the same is punishable with imprisonment or fine. However, Section does not provide that in case of illegal strike, employee can be dismissed from services without holding an inquiry. It is also relevant here to have the judgment of the Hon'ble Supreme Court titled as India General Navigation and Rly. Co. Ltd. v. Workmen, 1959 SCC OnLine SC 45. In this case, workers who were working in a company which was a public utility service went on a strike. They were dismissed from service which was challenged and the Court had made the following observations, which are relevant and they are reproduced herein below.
"25. In order to find out which of the workmen, who had participated in the illegal strike, belong to one of the two categories of strikers who may, for the sake of convenience, be classified as (1) peaceful strikers, and (2) violent strikers, we have to enquire into the part played by them. That can only be done if a regular inquiry has been held, after furnishing a chargesheet to each one of the workmen sought to be dealt with, for his participation in the strike. Both the types of workmen may have been equally guilty of participation in the illegal strike, but it is manifest that both are not liable to the same kind of punishment. We have, therefore, to look into the nature of the inquiry alleged to have been held by or on behalf of the appellants."
53. Perusal of the judgment reveals that even in case if the strike LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 33/38held to be illegal, the departmental inquiry has to be conducted before passing the order of the dismissal of the employee. In this case, the management had not conducted any departmental inquiry before terminating the services of the claimant. Moreover, the order of dismissal dated 02.05.2018 as well as order dismissing the appeal dated 16.12.2018 reveals that the claimant was dismissed on the ground of abandonment of services and no ground about the illegality of the strike. The Management has also not claimed that they have complied with Section 25F of the ID Act. Hence, the dismissal of the claimant is illegal and hence, this issue is decided in favour of the claimant.
RELIEF:
54. The workman in this case has prayed for reinstatement and back wages with all consequential benefits. It was argued during final arguments that the claimant was working with the management as a Clerk/Cashier and her last drawn wages were Rs.34,699/ per month at the time of termination of employment. The AR for the claimant has relied upon the judgment of Hon'ble supreme court tittled as Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 to press for the relief of reinstatement and full back wages. It is further argued that in para LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 34/3838 the Hon'ble court has stated that in case of wrongful termination, reinstatement is the normal rule. The relevant part of the Judgment is reproduced as follows:
"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule."
55. The above mentioned Judgment of the Hon'ble court was discussed by the Hon'ble Delhi High Court in case tittled as Mohit Jain v. Thomas Cook (India) Limited 2014 SCC OnLine Del 7322. Wherein the Court has made following observation. The same are as follows "3. In the case of Deepali Gundu Surwase v.Kranti Junior Adhyapak Mahavidyala (D.ED.), (2013) 10 SCC 324, the Hon'ble Supreme Court has observed that in a very nature of things there cannot be a strait jacket formula for awarding relief of reinstatement with back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal."
56. Thus, the grant of relief of reinstatement and back wages has to be given by taking into account the facts of each case. As far the relief of reinstatement is concerned, the termination of the claimant is illegal. The claimant is working since 1999, she is admittedly permanent employee of the bank, she is getting a handsome amount LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 35/38as salary along with other perks from the Management. Her job also provide her opportunity to advance in carrier. The Job which the claimant is having with the Management cannot be easily found in the Job Market. Keeping in view these facts, she is entitled to relief of reinstatement.
57. As regards the back wages, the law is settled by the Hon'ble Supreme Court of India in case of UP State Brassware Corporation Ltd. vs. Uday Narain Pandey, JT 2005 (10) SC 344, wherein it has been held :
"The Industrial Courts while adjudicating on disputes between the management and the workman, therefore, must taken such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial disputes act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. The Court, therefore, emphasised that while granting relief, application of the mind on the part of the Industrial Court is imperative. payment of full back wages, therefore, cannot be the natural consequence."
LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 36/3858. The claimant has also claimed the relief of full back wages. It has come on record that the claimant had went on strike which was illegal and the Hon'ble supreme court in case titled as Syndicate Bank v. K. Umesh Nayak, (1994) 5 SCC 572, while dealing with the entitlement of wages for the period of strike had observed as follows:
"25. We, therefore, hold endorsing the view taken in T.S. Kelawala[(1990) 4 SCC 744 : 1991 SCC (L&S) 170 :
(1991) 15 ATC 747] that the workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act."
59. As held above, the worker is not entitled for the wages for the period of strike. That can be claimed if the strike is legal and justified. But herein the strike is illegal and it is the trigger for the subsequent acts which resulted in this industrial dispute. On the other hand, the Management has dismissed the worker from employment on the ground of abandonment which it has failed to prove. Thus keeping into account all these aspect, Award is passed in favour of the claimant with the following relief: LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
Page 37/38The claimant is granted 50% of the back wages along with consequential benefits and also reinstatement of her job. The said order is directed to be complied within one month of the publication of the award by the appropriate government.
60. Present claim of the claimant is disposed of accordingly. A copy of this order be sent to the Competent Authority for publication and compliance as per rules.
61. File be consigned to record room.
Digitally signed
ARUN byDate:ARUN GOEL
Announced in open court
on Dated: 06.04.2024
GOEL 2024.04.06
(Arun Goel)
16:15:05 +0530
Presiding Officer, Labour Court X
Rouse Avenue Courts
New Delhi: 06.04.2024
LIR No. 2539/19 Manisha Sehgal vs. M/s. Jain Co-operative Bank Ltd..
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