Delhi District Court
Case Jitendra Kumar Babubhai Parmar vs . Shoe Land, 1997 Iii on 17 August, 2010
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL DISTRICT &
SESSIONS JUDGE / PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID NO. 104/10 (New) 207/2002 (Old)
Date of Institution : 09.08.2002
Date of Arguments: 13.08.2010
Date of Award : 17.08.2010
IN THE MATTER BETWEEN:
M/s Kishan Lal Girish Kumar
C115, New Subzi Mandi,
Azad Pur, Delhi - 110033. The management
AND
Sh. Janak Raj
S/o Sh. Giri Lal
R/o D6, Prithvi Raj Road,
Adarsh Nagar, Delhi. The workman
A W A R D
The Secretary (Labour), Government of NCT of Delhi
vide its order No.F.24(2117)/2002Lab./1387680 dated 27.06.2002
referred an industrial dispute between the above mentioned parties to
the Labour Court with the following terms of reference:
"Whether Sh. Janak Raj s/o Sh. Giri Lal is absenting from the
the services at his own or his services have been terminated
illegally and/or unjustifiably by the management, and if so, to
ID No.104/10 Page 1 of 14
what sum of money as monetary relief along with
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 facts in brief of the workman case, are that the
workman was appointed on 01.01.1980 by the management as
'salesman' and was working to the entire satisfaction of the
management. Initially, the monthly salary of the workman was
Rs.1500/. As the workman was unmarried at that time, so he
deposited Rs.1000/ per month with the management from
01.01.1980 to 30.05.1995. Subsequently, his salary was increased to
Rs. 8000/ per month w.e.f. June, 1995. The workman had been
depositing Rs.4000/ per month with the management and was only
taking Rs.4000/ per month during the period from June, 1995 to
31.01.2001. It was undertaken by the management that it will
handover the money of the workman as and when the same is
needed or demanded by the workman. In the month of February,
2001, the workman requested for release of his money which was
deposited with the management. The management not only refused
to accede the said demand of the workman, but also extended threats
of dire consequences, besides, removed him from his services
without any reason and without following the procedure laid down
under the Industrial Disputes Act, 1947, here in after referred to as
ID No.104/10 Page 2 of 14
the Act. The termination of his services was totally illegal and against
the principles of labour law. Therefore, he is entitled for reinstatement
in service with full back wages and other benefits of services as per
law. The workman prayed for passing an award, accordingly.
3. The management denied each and every allegation
made in the statement of claim. It was also denied that the workman
joined the services of management w.e.f. 01.01.1980. However, it
was admitted by the management that the workman had been
working with it. It was pleaded that he was working with the
management in supervisory capacity. He is not covered under the
definition of 'workman' as provided u/s 2(s) of the Act. He started
absenting from his duties unauthorizedly w.e.f. 20.02.2001 for doing
his own business, without any intimation to the management. The
management sent many letters to the workman to resume his duties
but he failed to report for duty. The management was still willing to
keep him in service. The workman has filed a false, bogus, fabricated
and concocted statement of claim. He is not entitled to get any relief.
The management prayed for dismissal of his statement of claim.
4. In his rejoinder the workman controverted the
contentions made in the WS and reiterated the averments made in
the statement of claim.
ID No.104/10 Page 3 of 14
5. On the pleadings of the parties, following issues were
framed by my Ld. Predecessor:
1. Whether Sh. Janak Raj, s/o Sh. Geri Lal is
absenting from the services 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. Whether workman remained absent despite
several calls and did not attend/join the job and
abandoned his services?
3. Whether workman is not covered within the
definition of section 2(s) of the I.D.Act?
6. In support of his case the workman examined himself as
WW1. He proved his affidavit as Ex. WW1/A and placed reliance on
documents Ex. WW1/1 to Ex. WW1/4 and mark A to mark C.
In order to prove its case, the management examined
Shri Kishan Lal Gaba, Proprietor of the Management, as MW1. He
also filed his affidavit as Ex.MW1/A and relied on documents Ex.
MW1/1 to Ex.MW1/7. Sh. Hira Ballabh has been examined as MW2
who was a summoned witness and relied on documents as
Ex.MW2/1 to Ex.MW2/3. Sh. Balbir Singh has been examined as
MW3 who was also a summoned witness and relied on document
ID No.104/10 Page 4 of 14
Ex.MW3/1 to Ex.MW3/3.
7. I have heard the arguments addressed by Authorised
Representatives of both the parties and perused the file including
written arguments.
8. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering the written
arguments and the oral arguments addressed by Authorised
Representatives for the parties, I have formed my opinions on the
issues and that are discussed here in below issuewise. However, for
the sake of clarity and convenience, Issue Nos. 2 & 3 are dealt with
before disposal of Issue No. 1.
FINDINGS ON ISSUE NO. 2
9. The burden to prove this issue was on the management
and it had to prove that the workman remained absent and thereafter
he abandoned his services. Counsel for the management relied on a
case Jitendra Kumar Babubhai Parmar vs. Shoe Land, 1997 III
LLJ (Supp.), 692. It was observed therein that:
"Once it is found and recorded as a finding of fact that the
workman had started a competitive shoe shop, and also had
personally invited his former employer to attend the
inauguration, this lends great credence and support to the
ID No.104/10 Page 5 of 14
employer's case that the workman had abandoned his
employment. The crux of the matter in this case is not
willingness of the workman to resume duty or to continue in
employment inspite of his starting a competitive business but
what really matters is whether the defence put up by the
employer is credible and believable on the basis of the evidence
on record. On the basis of the examination of such evidence it is
apparent that the findings of fact recorded by the Labour Court
are in consonance with the evidence on record and such
findings, cannot, in any matter, be said to be perverse, nor can
the appreciation of evidence on the part of the Labour Court be
called perverse.
10. Counsel for the management also relied on a case
Sankaranarayanan, P.I. Ernakulam vs. Spices Board, Kochi &
Another, 1999 II LLJ, 592. It was held therein that:
"Under common law an inference that an employee has
abandoned or relinquished his services is not easily drawn
unless 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 his service. 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
under law. In the present case the intention of the petitioner to
abandon his services has been clearly proved by voluminous
documents produced by the Spices Board. The Apex Court has
held that 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. In
the present case the abandonment of service is total and
complete. The employee has given up his duties and has
ID No.104/10 Page 6 of 14
exhibited an intention not to resume the same, in spite of
sufficient opportunities given to him by the employer. Therefore,
it can be easily construed that there has been voluntary
abandonment of service."
11. He further relied on a case Continental Construction
Ltd. vs. Presiding Officer and Another, 2004 III LLJ, 117 wherein
the Apex Court observed that:
"In the facts and circumstances of the case, it stands proved on
record that the workman had abandoned the job of the
petitionercompany voluntarily and the conclusion arrived at by
the Labour Court that the services of the workman were orally
terminated by the company in violation of the provisions of
Section 25F of the Act is not sustainable as the workman has
failed to discharge the burden of proof that his services were
orally terminated by the employer. It is settled proposition of law
that burden of proof always lies upon the party who makes
certain allegations and seeks relief on it. The Court has to
address itself whether they party, which has made the
allegations, has discharged the burden of proving the
allegations. Moreso, the party must succeed on the strength of
its own case rather than on the weakness of the case of the
other side. The workman has failed to prove his case of oral
termination by the employer and on the contrary the petitioner
Company has proved on record that on the basis of the oral and
documentary evidence it was the workman who had abandoned
his job voluntarily without sanctioned leave and he had failed to
report for duty despite the message sent to him by the
employer."
12. I have analysed and considered the evidence adduced
ID No.104/10 Page 7 of 14
by the parties on record and also considered whether the principles of
law in above mentioned cases are attracted on the facts of the
present case. I came to the conclusion that the workman abandoned
his job of his own. The reasons which support my decision are, firstly,
that the workman in his cross examination admitted that lastly he
went to the shop of the management on 21.02.2001 and that he was
doing his business with M/s Punjab Fruit Co., Batala, Punjab, M/s
Kanhiya Fuit Co. Sabzi Mandi, Gurdaspur, Punjab. Thus, it has been
established on record that after 21.02.2001, he had been doing his
own business.
13. Secondly, MW2 & MW3 proved Bank Account
Statements of workman and other relevant documents as Ex.MW1/1
to MW1/7, MW2/3 and Ex.MW3/1 to Ex.MW3/3. Ex.MW2/1 is a copy
of statement of account No.06180021128292 in the name of M/s
Janak Raj Fruit Co. for the period from 01.10.2006 to 03.01.2007;
Ex.MW2/2 is statement of Account No.01190/031422 in the name of
Janak Raj & Geeta for the period from 23.12.2002 to 30.06.2005;
Ex.MW2/3 is statement of Account No. 06180021128292 in the
name of M/s Janak Raj Fruit Co. for the period from 11.09.04 to
04.03.2005. On perusal of these statements of accounts, I find that
there had been a number of transactions showing that workman was
earning substantial amount of money in his business. This leads to
ID No.104/10 Page 8 of 14
the conclusion that workman abandoned his job to do his own
business.
14. Thirdly, MW1 has proved documents Ex.MW1/2 to
Ex.MW1/7. I find that management sent number of letters to workman
to call him to resume his duties. Thus, the management made all the
efforts to call him on duty. This established a voluntary abandonment
of job by the workman.
15. Fourthly, the statement of MW1 stands corroborated by
above mentioned statements not only of MW2 & MW3 but also of the
workman himself. MW1 in his affidavit Ex.MW1/A has categorically
stated that workman left his services of his own by absenting from his
duties voluntarily from 20.02.2001. Nothing in cross examination
could come out to suggest that the workman did not abandon his job.
16. Fifthly, in cross examination workman admitted that he
was an income tax payee. He bought a house in Majlis Park in the
year 2004 in the name of his wife and he was working as a broker in
Azadpur Vegetable Market. He also admitted that he owned a two
wheeler scooter and his children were studying in Guru Nanak Public
School. All these facts have established that he was earning enough
money in the business and had sufficient means of meeting his family
ID No.104/10 Page 9 of 14
expenses.
17. Lastly, the rulings relied on by the management support
its plea as same are applicable on the facts of present case.
In view of above reasons, discussion, evidence on record
and particularly discussed here in above, issue No. 2 is decided in
favour of management and against the workman and it is held that
workman abandoned his job voluntarily.
FINDINGS ON ISSUE NO. 2
18. The burden to prove this issue was on the management
and it had to prove that workman is not covered under the definition
of 'workman' as provided in Section 2(s) of the Industrial Disputes
Act, 1947, here in after referred to as the Act. Section 2(s) runs as
under:
2.Definitions.***
[(s) "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or
implied, and for the purposes of any proceeding under this Act
in relation to an industrial dispute, includes any such person
who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute, but
does not include any such person
(i) ***
ID No.104/10 Page 10 of 14
(ii)***
(iii)who is employed mainly in a managerial or administrative
capacity, or
(iv)who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature.]"
19. The counsel for the workman relied on a case V.L.T.
Cargo Movers (P) Ltd., Mumbai vs. Ajitkumar S. Puri and Anr.,
2008 LLR 718. It was held therein by Bombay High Court that:
"The learned Judge noted that the 1st respondent was required
to put his signature on the muster roll as is reflected from the
admitted position. Though the petitioner claims that 1st
respondent was a Director, admittedly he was never invited to
attend Board Meetings. The learned Judge has referred to the
case law on the point. After considering the oral evidence
adduced by the petitioner as well as by the 1st respondent, there
is a finding of fact recording that the 1st respondent was a
workman as the petitioner could not adduce any evidence to
prove the assertions made by the petitioner. Therefore, it is very
difficult to accept the contention of the petitioner that the 1st
respondent was not a workman within the meaning of Section 2
(s) of the said Act of 1947."
20. MW1 on this aspect deposed that management used to
pay Rs.4000/ per month to the workman. He did not join services
with the management as salesman but he was working as supervisor.
He used to get the trucks loaded from the other employees of the
ID No.104/10 Page 11 of 14
management and used to supervise the work of other workmen. The
statement of MW1 was corroborated by workman himself when he, in
his cross examination, admitted that he used to get the trucks loaded
and used to supervise the work of other employees. He categorically
admitted that he used to work as supervisor. Besides, he used to
make challans of the trucks. The evidence on record has established
that salary of Sh. Janak Raj was more than Rs. 4000/ per month and
he was engaged in a managerial and supervisory capacity. Therefore,
he is not covered under the definition of 'workman' as defined u/s 2(s)
of the Act.
21. In view of the admission of material facts by the workman
himself that he was working as supervisor and he was getting
Rs.4000/ per month, therefore, provisions of sub clause (iv) of
clause (s) of Section 2 of the Act are attracted on the facts of the
present case. Accordingly, the ruling relied on by Ld. Authorized
Representative of Workman does not provide any benefit to the
workman.
In view of above reasons, discussion, evidence on record
and particularly discussed here in above, issue No. 3 is also decided
in favour of the management and against the workman and it is held
that the workman is not covered under the definition of 'workman' as
provided in Section 2(s) of the Act.
ID No.104/10 Page 12 of 14
FINDINGS ON ISSUE NO. 1
22. The burden to prove this issue was on the workman and
he had to prove that the management terminated his services either
illegally or unjustifiably. Under issue No. 2, it has been concluded that
the workman abandoned his job of his own to do his business. It has
also been held under issue No. 3 that he is not covered under the
definition of workman as mentioned u/s 2(s) of the Act. Therefore, in
view of the reasons mentioned above and evidence on record and
particularly discussed under Issue Nos. 2 and 3, it is held that Sh.
Janak Raj Shama abandoned his services by absenting himself from
his services of his own and the management did not terminate his
services either illegally or unjustifiably. Rather, the management sent
him many letters to join his duties but he failed to do so. Accordingly,
this issue is also decided in favour of the management and against
the workman.
ORDER
23. Consequent upon the decisions of all the issues, in favour of the management and against the workman, terms of reference are answered in favour of the management and against the workman and it is held that Sh. Janak Raj absented himself from his services of his own and the management did not terminate his ID No.104/10 Page 13 of 14 services either illegally or unjustifiably. Resultantly, the claimant/workman is not entitled to get any relief. No other directions are necessary in this case.
24. Copy of award be sent to Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to record room.
Announced in the Open Court on 17th August, 2010 (DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
ID No.104/10 Page 14 of 14