Delhi District Court
The vs The on 10 January, 2008
1
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 990/06
BETWEEN
The Workman
Sh. Mohan Lal S/o Late Sh. Shyam Lal
H. No. 673, Gali Jawara, Mohalla Kundewalan,
Delhi-110006.
AND
The Management of
M/s United Engineers,
562, Esplanade Road,
Chandni Chowk, Delhi- 110006.
Date of institution of the case : 30.01.2002
Date of reserving the award : 03.01.2008
Date of announcement of award : 10.01.2008
AWARD
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F.24(3752)/2001-Lab./293-97 dt. 10.01.2002 referred the dispute for adjudication between the Management of M/s United Engineers and its workman Sh. Mohan Lal S/o Late Sh. Shyam Lal in the following terms of reference:-
"Whether Sh. Mohan Lal S/o Late Sh. Shyam Lal is
absenting at his own/or his services 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/Government Notification and to what other relief is he entitled and what directions are necessary in this respect?"
2. The workman has filed statement of claim stating therein that he was appointed by management as Commercial Assistant on 05.05.1998 on a monthly salary of Rs.4000/- + Rs.500/- as conveyance allowance. The workman was working sincerely and diligently to the satisfaction of management and the salary of workman was increased to Rs.4500/- + Rs.500/- towards conveyance allowance w.e.f. 2 01.04.2000. It is stated that on 29.07.2000 workman was not feeling well and he informed the management telephonically about his ailment and 30.07.2000 was holiday and when on 31.07.2000 when workman reported for duty the management denied duty to the workman without assigning any reason. It is stated that thereafter the workman has been visiting the management regularly and has been requesting for duty but to no avail. It is stated that no notice or charge-sheet was served on the workman and no departmental enquiry was conducted against the workman before terminating the services of the workman. It is stated that the management also not paid the earned wages for the month of July 2000 to the workman and the bonus for the years 1998-1999 and 1999-2000 was also not paid to the workman. It is stated that the workman served a notice of demand to the management on 17.08.2000 and the management sent reply dt. 29.09.2000 which was termed as reminder III whereby the management had asked the workman to report for duty and the workman sent a reply dt. 12.10.2000 wherein he showed his willingness to join the job again if and only if former dues are cleared. It is stated that the workman went to the management on several occasions thereafter, but he was not responded by the management. It is stated that the workman is still willing to join the job as he is still jobless. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management and AR for management appeared on 14.11.2002, 15.01.2003 and 11.02.2003 and sought adjournment for filing W.S. On 18.03.2003 the management failed to appear and was proceeded ex-parte and case was fixed for ex-parte evidence of the workman.
4. In support of his case the workman examined himself as WW1 and WE was closed on 10.07.2006.
5. I had heard Authorized Representative of the workman and carefully perused record.
6. The plea of the workman is that the services of workman were terminated illegally by the management on 31.07.2000. The workman appeared in the witness box as WW1 and adduced his evidence by way of affidavits Ex. WW1/A and Ex. 3 WW1/B. The workman has relied on notice dt. 17.08.2000 issued to the management by the workman which is Ex. WW1/1, AD card Ex. WW1/2, letter/reminder dt. 29.09.2000 issued by the management to the workman Ex. WW1/3, reply of the workman sent to the letter/reminder dt. 29.09.2000 of management which is Ex. WW1/4 and AD card Ex. WW1/5.
7. In the statement of claim the workman has stated that on 29.07.2000 he was not feeling well and he had informed the management telephonically about his illness and 30.07.2000 was Sunday and on 31.07.2000 when the workman reported for duty he was denied duty by the management without assigning any cause or reason and thereby his services were terminated. In para 10 of the affidavit Ex. WW1/B the workman has stated that he got a legal notice dt. 17.08.2000 served on the management and the same is Ex. WW1/1 and he received absentee notice dt. 29.09.2000 from the management and the same is Ex. WW1/3 which was termed as Reminder III wherein the management had asked the workman to report for duty immediately and the workman sent reply to the same which is Ex. WW1/4 wherein he showed his willingness to join duty if and only if his dues and payments are cleared. As per contents of para 10 of affidavit Ex. WW1/B the management had sent notice to the workman Ex. WW1/3 wherein management had stated that by earlier letters and reminders the workman was asked to report for duty and he has not communicated any reason for being absent for such a long time and the workman was directed to report for duty immediately with proper documents/reason for remaining absent for such a long time. The workman has placed on record the reply which was sent to the notice dt. 29.9.2000 (Ex. WW1/3) of management and the said reply is Ex. WW1/4. Para 5 of the reply Ex. WW1/4 which was sent by workman to the notice of the management Ex. WW1/3 reads as under:-
"5. That now you have been sending reminders to the applicant therein asking to join his duty. In this regard you are hereby informed that the applicant is still ready to join his job if and only if his dues and payments are cleared from the date he was sacked from his services."4
8. As per contents of para 10 of affidavit Ex. WW1/B and para 5 of Ex. WW1/4 which is reply sent by workman to the notice Ex. WW1/3 of management, the workman had stated to the management that he was ready to join duty if and only if his dues and payments are cleared from the date he was sacked from the services. The appropriate Government has referred the dispute to this court with Terms of Reference that whether the workman was absenting at his own/or his services were terminated illegally and/or unjustifiably by the management. As per notice Ex. WW1/3 which was sent by the management to the workman, the workman was told to report for duty and as per reply Ex. WW1/4 sent by workman to the notice Ex. WW1/3 of management, the workman was willing to report for duty if and only if his dues and payments are cleared.
9. In Sonal Garments vs. Trimbak Shankar Karve-2003-LLR-5 it was held that:
Whenever the employer offers to reinstate the workman at any stage of the dispute or proceedings and if the workman does not accept the offer even without prejudice to his rights and contentions, he will not be entitled to claim for reinstatement and he will be not entitled to claim any back wages from the date of such offer, conditional or unconditional.
10. In case titled as Competition Printing Press vs. Jaiprakash Singh and Another 2001-II-LLJ 1341, management attended the office of Government Labour Officer and submitted that workman himself was remaining absent and that he was never terminated from employment and he could report for work with continuity of service and the workman refused to get reinstated with continuity of service but insisted for back wages. It was held 5 that no genuine and bonafide workman who was aggrieved by an illegal order of termination would deny the offer of reinstatement and would not readily give up the valuable job for the sake of few days back wages. Alternatively the workman could have accepted reinstatement before the Government Labour Officer and even before the Conciliation Officer praying to refer the dispute restricting to the entitlement of the back wages as he was already reinstated during the proceedings before the Government Labour Officer or the Conciliation Officer as the case may be. It was further held that in such case the workman is not entitled to reinstatement and back wages.
11. In Tirloki Nath (Shri) v. Shri Dharam Paul Arora & Anr. 2006 LLR 1043 our own Hon'ble High Court held that if a workman fails to resume duties, even when the offer is made before the Conciliation Officer as well as the Industrial Tribunal, it will be irresistibly presumed that he is no longer interested in the job and has abandoned the job of his own accord. It was further held that merely that the workman has not resumed the duty because he was not entitled to have salary, would not justify his refusal since after joining he could have lodged his protest.
12. As per notice Ex. WW1/3 which has been filed by workman himself on record, the workman was offered duties by the management, but as per Ex. WW1/4 the workman did not accept the offer of reinstatement of management as made to him by notice Ex. WW1/4 on the pretext that the workman was ready to join the duty if and only if his dues and payments are made to him by the management. If the grievance of the workman is that the management has not paid his dues and he was interested in the job of the management then he could have accepted the offer of the management made for job by way of letter Ex. WW1/3 and could have joined the duty reserving his right for his legal dues as held in Sonal Garmetns vs. Trimbak Shankar Karve (Supra) & Competition Printing 6 Press vs. Jaiprakash Singh and Another (Supra). However, the workman did not adopt this course and rather proceeded to litigate and the conduct of the workman shows that he had abandoned the employment and he never went back to report for duty even after offer of duties made to him by the management. It leads to the conclusion that the workman had absented from duties of the management. As the workman himself had absented from the duties of the management, hence there is no question of termination of the services of the workman illegally and/or unjustifiably by the management. Consequently, the workman is not entitled to any relief. Reference stands answered accordingly. Copies of this award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 10.01.2008.
` (HARISH DUDANI)
PRESIDING OFFICER
LABOUR COURT NO. XVII
KARKARDOOMA COURTS,
DELHI