Delhi District Court
24. In Kendriya Vidhyalaya Sanghathan ... vs . S. C. Sharma on 17 April, 2008
1
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 140/06
BETWEEN
The workman
Sh. Mohd. Irfan S/o Sh. Mohd. Ramzan,
C/o Delhi Offices and Establishment Employees Union
Related to CITU,3, V.P. House, Rafia Marg,
New Delhi-1
AND
The Management of
M/s Rechurch Bye Fashion House,
B-1, Extension/A-39, Mohan Co-operative,
Industrial Estate, Mathura Road,
Badar Pur, New Delhi- 44.
DATE OF INSTITUTION OF THE CASE : 15.11.2003
DATE OF RESERVING THE AWARD : 03.04.2008
DATE OF ANNOUNCEMENT OF AWARD : 17.04.2008
AWARD
1.The National Capital Territory of Delhi through its Secretary (Labour) vide reference no. F.24(2845)/2003/Lab.2140-44 dt. 28.10.2003 referred the dispute for adjudication between the management of M/s Rechurch Bye Fashion House and its workman Sh. Mohd. Irfan in the following terms of reference:-
"Whether Sh. Mohd. Irfan S/o SH. Mohd. Ramzan has abandoned his services or his services have 2 been terminated illegally and/or unjustifiably by the management, if so to what relief is he entitled and what directions are necessary in this respect?"
2. Workman has filed statement of claim stating therein that he was working with the management as Embroidery Sample Man w.e.f. 15.02.1996 and his last drawn salary was Rs.4032/-per month. Workman was working sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. On the occasion of Id festival the workman submitted application to the management on 02.12.2002 for sanction of leave from 02.12.2002 to 09.12.2002 and the management confirmed the leave of the workman and workman went to his native place. On 10.12.2002, when the workman reported for the duty the gate keeper informed Sh. Atul Kumar Gupta, proprietor of the management who came at the gate of the establishment and told the workman to come for duty in the next week on which the workman came back. After one week the workman again went to management to join the duties but again proprietor of the management told the workman to come in the next week and on being asked by workman as to why he was not allowed to join the duties the proprietor of the management told him that he was having some problem on which the workman came back and he went to management after one week but again proprietor of the management did not allow the workman to join duty and he 3 refused to keep the workman on duty and the salary for the month of November 2002 was not paid and the management terminated the services of the workman in violation of provisions of Industrial Dispute Act 1947. On 27.02.2003 , the workman sent notice of demand to the management but the workman was not reinstated and his dues were not paid. On 11.03.2003 workman filed claim before the conciliation officer but the management did not participate in the conciliation proceedings and the settlement was not arrived. 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 the management has filed WS and has contested the same. In the WS management has admitted that workman was employed with the management as Embroidery Sample man at the salary of Rs. 4032/- . It is denied that workman has been employed with the management since 15.02.1996. It is stated that workman had joined the management on 01.04.1999. It is denied that workman was working sincerely and diligently with the management. It is stated that workman was warned to improve his conduct during his employment with the management. It is also denied that workman submitted application for leave on 02.12.2002 and leave was sanctioned to the workman from 02.12.2002 as alleged. It is stated that workman was absent from his duties w.e.f. 1.12.2002 without any permission 4 and sanction of the leave. It is denied that the workman reported for duty on 10.12.2002 and the management told the workman to come in the next week and again workman came in the next week and workman was again told to come in the next week. It is also denied that the services of workman have been terminated illegally. It is stated that the management vide his letters dt. 03.12.2002, 10.12.2002 and 23.12.2002 advised the workman to resume his duties but he failed to resume duties and copies of the said letters were sent to the Deputy Labour Commissioner at Pushp Bhawan, Pushp Vihar, New Delhi. It is stated that workman is gainfully employed in Delhi and had not suffered any monetary loss. It is stated that management is still ready to take workman back on duty. It is stated that workman has not taken wages for the month of November 2002 as he was absent from duties from 01.12.2002 and thereafter did not the approach the management to receive the same. It is stated that workman is not entitled to any relief.
4. The workman has filed rejoinder to the written statement of management. In the rejoinder workmen have reiterated the contents of statement of claim and have controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my ld. predecessor on 02.02.2005:
1.As per terms of reference.5
6. To prove his case workman has examined himself as WW1.
7. Management has examined Sh. Sanjeev Gupta, Manager as MW1.
8. I have heard authorized representative for parties and carefully perused record. My findings on specific issues are as under: 9. ISSUE NO. 1
In the statement of claim workman has stated that he has been employed with the management w.e.f. 15.02.96 as Embroidery Sample Man and on 02.12.2002 he submitted an application to management for leave from 02.12.2002 to 09.12.2002 and he was sanctioned leave by the management for the said period and he reported for duties on 10.12.2002 but he was not assigned work by the management and he told to come in the next week and then he again made visits to the management but the management did not assign work and terminated his services illegally. The contention of the management is that the workman was employed as Embroidery Sample Man on 01.04.1999 and the workman has absented from duties w.e.f. 01.12.2002 without permission and sanction of leave . The management has contended that workman did not report for duties despite letters dt. 03.122002, 10.12.2002, 23.12.2002 and the management is still ready to take him back on duty.
10. The contract of service comes to an end where the workman abandons his job but 'abandonment of service' has not been defined in the Act. 6
Etymologically, the work ' abandonment' has been explained to mean ' to leave completely and finally' ; forsake utterly; to relinquish, to renounce, to give up all concern in something; relinquishment of an interest or claim; abandonment when used in relation to an office means 'voluntary relinquishment'. In order to constitute an 'abandonment', therefore, there must be a total or complete giving up of the duties, so as to indicate an intention not to resume the same. Abandonment must be total and under circumstances which clearly indicate an absolute relinquishment. A failure to perform the duties pertaining to an office, must be with an actual or imputed, intention on the part of the officer to abandon and relinquish the office'.
11. In Buckingham & Carnatic Co. Ltd. v. Venkatayya (1963) 2 LLJ 638 Hon'ble Supreme Court held that abandonment 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.
12. In GT Lad v. Chemicals and Fibres of India 1979 Lab IC 290, Hon'ble Supreme Court held that:
However, the "intention may be inferred from the acts and conduct of the party'. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case. It was further held that a temporary absence from duty cannot be treated as abandonment, but it must be a permanent break 7 intended by the workman.
13. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, Jodhpur and others, 2001 LLR 1071 Hon'ble Court held:
There is distinction between retrenchment and
abandonment from service. The termination
contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression retrenchment and in case the workman does not report for duty, it would amount to abandonment of services by the employee of his free will and the employer would have done nothing, whatsoever, to put an end to his employment and, therefore, the case does not fall within the meaning of "retrenchment".
14. In order to prove his case workman appeared in witness box as WW1 and workman adduced evidence by way of affidavit Ex. WW!/A . In affidavit Ex. WW1/A workman has reiterated the contents of statement of claim. The workman/WW1denied the suggestion of management in cross-examination to the effect that he had not submitted any application on 02.12.2002 and he was not sanctioned leave. The workman/WW1 has stated in the cross- examination that after availing leave he reported for duty on 10.12.2002 but he was not allowed to enter the premises of management by the gate keeper 8 and that Sh. Gupta came to the gate and told him to come after one week and thereafter he reported for duties thrice but he was not assigned duties.
15. The plea of the management is that the workman has absented from duties w.e.f. 01.12.2002 and workman did not report for duties despite letters dt. 03.12.2002, 10.12.2002 and 23.12.2002 sent to him. The management examined Sh. Sanjiv Gupta, Manager as MW1 who adduced evidence by way of affidavit Ex. MW1/A. The management had relied on copies of letters dt. 23.12.2002, 10.12.2002 and 03.12.2002 Ex. MW1/1 , MW1/2 and MW1/3 respectively. The workman/WW1 denied in the cross-examination that he had received letters dt. 03.12.2002, 12.12.2002 and 23.12.2002 from the management. MW1 admitted in the cross-examination that no postal record of despatch of Ex. MW1/1, MW1/2 and MW1/3 has been filed by the management on record. The management has not filed any postal receipt / UPC receipt on record in order to prove that letters Ex. MW1/1, MW1/2 and MW1/3 were despatched to the workman by the management and despite the said letters workman did not join the duties. The management has stated in Para-7 of WS that copies of letters Ex. MW1/1 , MW1/2 and MW1/3 were sent to the Deputy Labour Commissioner , Pushp Bhawan , Pushp Vihar , New Delhi . However, the management has not summoned any record from the office of Deputy Labour Commissioner, Pushp Bhawan, Pushp Vihar, New Delhi in order to prove that copies of letters Ex. MW1/1 , MW1/2 and MW1/3 9 were sent to the Deputy Labour Commissioner. The management has failed to prove that letters dt. 23.12.2002, 10.12.2002 and 03.12.2002 Ex. MW1/1 , MW1/2 and MW1/3 respectively were sent to the workman and the workman was directed to join the duties of management.
16. In Para-16 of the affidavit Ex. WW1/A , workman has stated that he sent notice of demand dt. 27.02.2003 to the management but despite service of the said notice he was not reinstated. The copy of notice dt. 27.02.2003 is Ex. WW1/3 and postal receipt is Ex. WW1/4. In the cross-examination no suggestion has been given to the effect notice Ex. WW1/3 was not despatched by the workman to the management vide postal receipt Ex. WW1/4 or that the notice Ex. WW1/3 does not bear correct address of the management and the same was not received by the management. The management has failed to rebut the claim of the workman that notice dt. 27.02.2003 Ex. WW1/3 was served on the management. The management has not proved that after receipt of notice Dt. 27.02.2003 Ex. WW1/3 management has sent letter the workman thereby rebutting the contents of the notice Ex. WW1/3 and offering duties to the workman. On one hand management has pleaded that it sent notices dt. 23.12.2002, 10.12.2002 and 03.12.2002 Ex. MW1/1 , MW1/2 and MW1/3 to the workman but management has not explained if they did not terminate the services of the workman and management was interested in retaining the services of workman then why no 10 reply was sent to the notice dt. 27.02.2003 of the workman. On receipt of notice dt. 27.02.2003 Ex. WW1/3 from the workman it was open for the management to have sent reply of the same to the workman and offering duties to the workman by stating that services of the workman have not been terminated by management. In Para-18 of the affidavit Ex. WW1/A , workman/WW1 has stated that he filed claim before the conciliation officer and the same is Ex. WW1/6 but the management did not appear in the conciliation proceedings despite notice issued to the management. In the cross-examination of workman/WW1 no suggestion have been given by the management to the effect that the workman had not filed claim Ex. WW1/6 before the conciliation officer or that no notice was issued to the management by the conciliation officer and the management was not aware of the pendency of the conciliation proceedings. The management has not explained that despite having knowledge of the pendency of the conciliation proceedings why the management did not appear in the conciliation proceedings. If the management had not terminated the services of the workman and they were really interested in retaining the services of the workman then the management could have participated in the conciliation proceedings and could have offered employment to the workman before the conciliation officer. However, the management did not adopt this course and now the management is pleading that they had offered employment by way of 11 WS filed before this court and they had sent letter to the workman during the pendency of these proceedings on 11.08.2006 for joining the duties. However, the conduct of the management clearly proves that the workman has not abandoned the employment of the management and it is the management which had terminated the services of the workman and the management is making a lame excuse by stating that workman has absented from duties w.e.f. 01.12.2002.
17. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both." 12
18. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
19. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
20. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or 13 (bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
21. Section 25F of the Industrial Disputes Act 1947 provides that:
Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette. 14
22. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
23. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
24. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
25. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial 15 Disputes Act."
26. In Municipal Council, Sujanpur v. Surinder Kumar 2006 LLR 662 Hon'ble Supreme Court held that it is well settled principle that the burden of proof, having regard to the principles analogous to section 106 of the Evidence Act, lies upon the concerned workman to prove that he was not gainfully employed after his alleged termination i.e. during pendency of the industrial dispute.
27. In case titled as Thankur Singh Rawat and others v. Jagjit Industries Ltd. 2006-I LLJ 775 our own Hon'ble High Court held that if there is any pleading of workman remaining unemployed from termination of his services till passing of award and neither any evidence is let in to prove such employment. The claim of the workman for back wages shall not be sustainable.
28. In Municipal Corporation, Sagar v. Presiding Officer, Labour Court, Sagar and Anr. 2006 LLR 549 it was held that back-wages on reinstatement of a workman is not a rule of thumb and in view of the Supreme Court judgement, the burden of proof lies upon the workman to prove that he remained unemployed after termination of his service whereas in the present case, the workman did not whisper a word about his unemployment and as such the Award of the Labour Court granting full back-wages is set aside. 16
29. The workman adduced evidence by way of affidavit Ex. WW1/A. In Para-10 of affidavit Ex. WW1/A, the workman/WW1 has stated that his services have been terminated illegally by the management and in Para-22 of the affidavit Ex. WW1/A , workman/WW1 has stated that the statement of claim of the workman may kindly be allowed. In the statement of claim the prayer of the workman is that he be reinstated alongwith full back wages and other benefits. However, in the statement of claim workman has nowhere stated that he remained unemployed after termination of his services by the management or that despite due best efforts he could not get alternate employment. The workman adduced evidence by way of affidavit Ex. WW1/A and in the affidavit Ex. WW1/A, the workman has nowhere stated that he has remained unemployed after termination of services or that he made efforts to secure any alternate employment after disengagement from the management but he could not succeed. The workman has also not proved that if during the period after his disengagement from the management he was unemployed then how he was sustaining himself. In the circumstances, as workman has not pleaded that he has remained unemployed after termination from the services of management the workman shall not be entitle to payment of back wages.
30. In Para-9 of the statement of claim, workman has stated that management has not paid his salary for the month of November 2002. In 17 para-13 of the reply on merits in the WS management has admitted that the workman has not taken wages for the month of November 2002. As the wages for the month of November 2002 have not been paid to workman hence, he shall be entitled to the wages for the month of November 2002. The workman has prayed for reinstatement in service. In para-9 and 12 of the reply on merits in WS, management has stated that the workman may join the duty if he is really interested to work with the management. In the cross- examination, workman/WW1 was put an question by management to the effect that whether he is willing to join the services with the management to which workman replied in affirmative. As the management is willing to keep the workman in service and the workman is also interested to work with management hence, the workman shall be entitled to reinstatement in service. The workman shall also be entitled to a sum of Rs. 10,000/- (Rupees ten thousand only) on account of cost of these proceedings under Section 11 (7) of the Industrial Dispute Act 1947. Reference stands answered accordingly. Copies of award be sent to appropriate Govt. for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAYi.e.ON 17.04.2008 (HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS 18 DELHI 19