Punjab-Haryana High Court
Saraswati Industrial Syndicate Ltd. vs Shri Jai Bhagwan Jain And Anr. on 2 May, 1994
Equivalent citations: (1995)ILLJ417P&H, (1994)107PLR586
Author: R.P. Sethi
Bench: R.P. Sethi
JUDGMENT G.S. Singhvi, J.
1. This appeal is directed against the order dated January 22, 1986, passed by a Single Bench in C.W.P. No. 2341 of 1983 'Jai Bhagwan Jain v. M.C. Bhardwaj and anOrs.', whereby the learned Single Judge has while allowing the writ petition filed by Jai Bhagwan ordered his re-instatement in the service of the appellant on the post of Accounts Clerk or any equivalent post with all other benefits.
2. In order to decide the question raised in the appeal, it is proper to make reference to some of the facts. Respondent Jai Bhagwan was appointed in the service of the appellant as Accounts Clerk on November 4, 1968 and was confirmed as such on May 31, 1969. On November 28, 1976 he was transferred to Saraswati Sugar Mills, Yamunagar, which according to the appellant, is a unit of Saraswati Industrial Syndicate Ltd. On January 6, 1978 a direction was given to the respondent-workman by the Cane Manager to work in the night shift as Cane Clerk/Weighment Clerk vice Shri Rattan Lal, Cane Clerk. Respondent-Workman protested against this posting and this plea was accepted by the management. However, after some time, office order dated March 3, 1979 was issued by Cane Manager and the workman Jai Bhagwan was directed to work in the nigh shift as Cane Clerk in place of Sharwan Kumar. The respondent-Workman did not attend the duty in the night shift as Cane Clerk but attended that very shift in which he was working prior to March 3, 1979. However, he was not assigned any work. At the same time Cane Manager issued a notice to him on March 8, 1979 indicating therein that he was not attending the duty in pursuance of order dated March 3, 1979 and still he was marking his attendance elsewhere. He was treated absent from duty w.e.f. March 5, 1979 and was warned to comply with the order dated March 3, 1979, or else face action for dispensing with the service in accordance with the standing orders. To this notice, respondent Jai Bhagwan replied on March 9, 1979 and claimed that having been appointed as Accounts Clerk, he cannot be made to work in the night shift. He pleaded that he was regularly attending duties but was not being allowed to mark attendance from March 9, 1979. He claimed that the action of the employer was illegal and, therefore, he was entitled to full back wages till he was allowed to resume duty. A demand notice dated April 16, 1979/May 4, 1979 was served by the workman on the employer claiming that he was not being allowed to join duty and was not being allowed to mark his attendance. He claimed re-instatement with continuity of service and full back wages. The dispute which arose between the parties was ultimately referred for adjudication to the Industrial Tribunal, Haryana, Faridabad vide Notification dated February 11, 1981 issued under Section 10(1)(d) of the Industrial Disputes Act, 1947 (for short 'the Act'). Respondent Jai Bhagwan filed his statement of claim and prayed for re-instatement in service but the employer contested his claim by asserting that he had failed to comply with the order dated March 3, 1979 and that he had remained absent from duty. After considering the rival pleadings and evidence as well as the arguments advanced before it by the representatives of the parties, the Industrial Tribunal held that the workman was not justified in not carrying out transfer order and, therefore, he would be deemed to have severed his connection with the management. On the basis of this conclusion, the Industrial Tribunal declared that the workman was not entitled to any relief.
3. Against the award of the Industrial Tribunal, workman filed writ petition which has been allowed as aforementioned by a Single Bench of this Court. Learned Single Bench has made reference to a Full Bench decision in Tulpar Machine & Tool Company, Faridabad v. Shri Joginder Pal, Workman and Ors., I.L.R. 1983 (2) Punjab & Haryana 357, whereby the Full Bench had quashed the appointment of Shri M.C. Bhardwaj as the Presiding Officer of the Tribunal on the ground that he did not posses the requisite qualifications. The learned Single Bench further observed that while quashing the appointment of Shri Bhardwaj the Full Bench had made it clear that all decisions rendered by him are not necessarily to be vitiated only on the ground of illegality in the appointment of Shri Bhardwaj. The learned Single Bench then proceeded to examine the rival submissions on merits and held that transfer of the workman to the night shift was illegal and arbitrary and, therefore, the workman cannot be said to have absented from duty. The learned Single Bench further observed that no action had been taken by the employer for terminating the services of the workman on the basis that he had absented without sufficient or justifiable cause. It is further held that termination of services of the workman after he had rendered more than ten years' service amounted to retrenchment and since there was a non-compliance of Section 25F of the Act, action of the employer was liable to be declared as void.
4. In support of the appeal, Shri Mutneja learned counsel for the appellant has argued that the learned Single Bench has committed a serious illegality in allowing the workman to raise a new plea for the first time in the writ petition, namely, that is posting vice Sharwan Kumar amounted to reversion. Shri Mutneja argued that no such plea had been raised before the Industrial Tribunal, no allegation had been made and no evidence was led by the respondent-workman and, therefore, it was not justified for the learned Single Judge to have permitted that plea to have been raised. He drew our attention to various documents enclosed with the writ petition and submitted that even in Annexure P-8, the workman had not pleaded that he was reverted and, therefore, he was not joining the duty. Shri Agnihotri learned counsel appearing for the respondent-workman, submitted that the representative of the workman has specifically pointed out to the Industrial Tribunal that workman has been promoted in Grade III and now he was being sent in place of junior Vth Grade Clerk. Shri Agnihotri argued that the Industrial Tribunal did not consider the plea raised on behalf of the workman but the learned single Bench has minutely examined this aspect of the matter and has recorded a clear finding that posting of the workman vice Shri Sharwan Kumar who was working as Cane Clerk was unlawful.
5. We have given our careful consideration to the rival submissions in the context of the material which has been placed on record by the rival parties. A look at the award (Annexure P-12) shows that the representative of the workman did make a submission that by the order of the management dated March 3, 1979 the workman was being sent in place of a junior Vth Grade clerk, even though he stood promoted to Grade III. The following extract of the award shows that this plea has been specifically raised on behalf of the workman;
"On the other hand, learned representative for the workman argued that the workman was Accounts Clerk in Syndicate. He was promoted to Grade III. He was sent to Sugar Mills to work in the day shift. He was sent in place of junior Vth Grade Clerk who was a temporary hand. He cited Lab. I.C. 1970 page 90."
Thus it can be said with certainty that the plea regarding placing of the workman in a lower grade was specifically raised before the Industrial Tribunal. It is an altogether different thing that the learned Judge, Industrial Tribunal, did not consider this plea raised on behalf of the workman and did not make an adjudication on that point. The learned Single Bench has taken note of the fact that the Clerk Grade III was getting pay in the scale of Rs. 160-6-90-EB-7-253 whereas Clerk Grade V was getting pay in the scale of Rs. I27-3-154-EB-4-174. The learned Single Judge also adverted to the conditions contained in the letter of appointment (Annexure P-1) and particularly clause 9 which entitled the employer to transfer the workman to any place in connection. with the Company's business or to any other organisation but observed that such a transfer could not have been made so as to ask the workman to do the job of a lower post. The learned Single Judge has specifically noted that the counsel appearing for the appellant (respondent in the writ petition) has failed to show as to how the post of Accounts Clerk (Grade III) could be treated as equivalent to the post of Cane Clerk (Grade V). We also notice that in para 5 of the writ petition, an unequivocal assertion was made by the respondent-workman alleging that he had been posted in the night shift against that post which carried a lower pay scale than the one which he was getting. No reply to this specific assertion was made in the return filed by the appellant. Thus sufficient material was available before the , learned Single Bench to hold that the post of Accounts Clerk was of a higher grade with the higher pay scale as compared to the post of Cane/Weighment Clerk and, therefore, the workman was justified in refusing to work on the lower post. We are in full agreement with the learned Singl Judge that the Industrial Tribunal committed a serious error in holding that the transfer of the workman vide order dated March 3, 1979 was justified. We are also in agreement with the learned Single Judge that the workman was justified in attending the office for working on the same post which was held by him prior to March 3, 1979 and that he cannot be treated to have absented from duty.
6. Second submission of the learned counsel for the appellant is that workman had voluntarily abandoned the job and, therefore, it was not justified for the learned Single Bench to have held that termination of service of the workman amounted to retrenchment. We find little merit in the submission of the learned counsel and we are of the considered opinion that the Industrial Tribunal committed a serious illegality in recording a bald conclusion that since the workman had not carried out the order of transfer he will be deemed to have himself severed his connection with the management. In our opinion, the Industrial Tribunal has not at all applied its mind to the pleadings of the parties as well as the material available on the record while holding that the workman had himself severed his connection with the management. A look at An-nexure P-7 which is the notice issued by the Cane Manager on March 8, 1979 shows that the employer was aware of the fact that the workman had come to office and had marked his presence in the attendance register. The employer treated this action of the workman as objectionable and indicated that he was liable to be punished. The employer treated the workman to be absent from duty and was warned with adverse action including termination of service unless he joined duty in pursuance of order dated March 3, 1979. The workman pleaded that he was not bound to work in the night shift in pursuance of order dated March 3, 1979. It is thus clear that the workman was very much available for service under the employer. Controversy between the parties was about the place of posting. In this fact situation it was not permissible for the Industrial Tribunal to hold that the workman had severed his connection with the management. Abandonment of service has to be a voluntary and wilful act on the part of the employee and where the employee merely refuses to join duty at a particular place, it cannot be said that he has wilfully abandoned the service. It is a different thing that for his alleged absence, the employer may have taken action against the employee under the relevant rules and the standing orders. But in any case theory of voluntary abandonment is wholly inapplicable in such like cases. We, therefore, hold that the Industrial Tribunal was in serious error in upholding the action of the employer on the ground that the workman had severed his connection with the management.
7. There is yet another aspect of the matter which deserves to be taken note of. Not only in Annexure P-7 but in the reply to the writ petition, the appellant had specifically pleaded that the action of the workman in not joining duty amounted to major misconduct under clause M(l) (a) of the Industrial Employment (Standing Orders) Act, 1956 and the certified standing order of the Company. The appellant has specifically pleaded that the workman had wilfully absented from duty and had disobeyed lawful order passed by the management. Admittedly neither any charge-sheet was served on the workman nor any enquiry was made by the employer before dispensing with the service by not allowing him to mark his attendance or to allot him work. When the employer had treated the workman to have absented from duty, it was simply not open to it to have brought an end to the relationship of master and without recording a finding of guilty qua the workman. To our mind the action of the employer was clearly contrary to the principles of natural justice. We find support for this conclusion from the decision of the Supreme Court in L. Robert D'Souza v. Executive Engineer, Southern Railway, (1982-I-LLJ- 330). In that case, their Lordships of the Supreme Court had examined an almost identical case involving termination of service of the workman on the ground of absence without leave. The Supreme Court declared that absence without leave constitutes misconduct and it is not open to the employer to terminate the services without notice and enquiries or at any rate without complying with the minimum principles of natural justice.
8. Same view has been taken by the Supreme Court in a recent decision in Shri D.K. Yadav v. J.M.A. Industries Ltd., (1993-II-LLJ-696).
9. No other point was argued.
10. In our opinion, the appeal is without merit and therefore, it is dismissed with cost quantified at Rs. 1000/-.