Delhi District Court
Vipin Chander Yadav vs Enmax Smart Systemz on 17 August, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-000976-2016
Ref. No. F-24(881)/Lab./SD/2015/47 Dated 01.01.2016
LIR No. 7257/16
Sh. Vipin Chander Yadav
S/o Sh. Rajbali Yadav,
R/o Jhuggi No. S-15/612A, Block-S,
Okhla Industrial Area, Phase-II,
New Delhi-110020
Through Akhil Hind Mazdoor Union (Regd.),
191, Janta Jiwan Camp,
C-43, Okhla, Phase-02,
New Delhi-110020. ..... Workman
VERSUS
M/s. Enmax Smart Systemz,
Plot No. 36, Basement, Pocket-2,
Jasola Vihar, New Delhi-110025. ..... Management
Date of Institution of the case : 07.01.2016
Date on which Award is passed : 17.08.2024
AWARD:
1. By this award, I will dispose off the reference dated
01.01.2016, received from the office of Deputy Labour
Commissioner, District South, Govt. of NCT of Delhi, Delhi, U/s
10(1)(C) & 12(5) of Industrial Disputes Act vide order no. F-
24(881)/Lab./SD/2015/47 Dated 01.01.2016 whereby the
following issue has been referred to this Court for adjudication:-
"Whether the services of workman Sh. Vipin
Chander Yadav S/o Sh. Rajbali Yadav have been
terminated illegally and/or unjustifiably by the
LIR No. 7257/2016
Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz
Award dated 17.08.2024 Page 1 of 37
management; and if so, to what relief is he entitled
and what directions are necessary in this respect?"
2. The aforesaid reference was received by this Court on
07.01.2016, whereafter, a statement of claim has been filed on
behalf of workman on 25.07.2016. Brief case of the workman, as
per his statement of claim, is that he had been working with the
management at the post of peon since 15.02.1996 against last
drawn wages of Rs. 9,500/-p.m., however, he had never been
provided with the statutory benefits such as appointment letter,
leave book, salary slip, attendance card, attendance register,
weekly holidays, annual leaves, overtime and minimum wages.
Annoyed by the demand of the workman, for the aforesaid
benefits, according to workman, the management has illegally
terminated his services on 15.02.2015 without any notice,
charge-sheet or domestic inquiry in violation of provisions of
Section 25-F of the Industrial Disputes Act, 1947.
3. It is further the case of workman that after termination of
his services by the management, he had served demand notices
dated 10.08.2015 and 31.08.2015 upon the management seeking
his reinstatement and has also filed a complaint dated
10.08.2015 with the Assistant Labour Commissioner. Since,
according to him, despite the directions of Labour Inspector, the
management has refused to reinstate him on job and to clear his
dues, the workman was constrained to file a statement of claim
before the Assistant Labour Commissioner, however, the
management had failed to appear before the Assistant Labour
Commissioner leading to the present reference.
4. It is further his case that despite efforts, he is unemployed
LIR No. 7257/2016
Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz
Award dated 17.08.2024 Page 2 of 37
since the date of termination of his services by the management
and hence, he is entitled to his reinstatement with full back
wages and other consequential benefits.
5. A written statement to the aforesaid claim of the workman
was thereafter filed by the management on 06.02.2018, wherein,
the management has acknowledged that in the year 1996, Mr.
Kamal Kapuria, the sole proprietor of the management firm, had
hired the service of the workman on the post of peon. Even after
his demise in the year 2014, according to the management, his
wife Ms. Vandana Kapuria had taken over the business and at
the request of the claimant, permitted him to continue on the post
of peon. Since the year 2014, according to management, the
claimant frequently started remaining absent from his duties and
despite repeated assurances, continued with his irresponsible
behavior.
6. It is further the case of management that since January
2015, the claimant stopped reporting on duty without any
intimation and after waiting for few days, the proprietor of the
management sent some of his employees to the last known
address of the workman, however, the workman was not found
available at the aforesaid address. Since, according to
management, despite waiting for workman for several days, the
workman did not report on duty and was not found available at
his last known address, the management has presumed that the
workman had abandoned his services.
7. Thus, it is the case of management that it has never
terminated the services of the workman and rather, it is the
LIR No. 7257/2016
Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz
Award dated 17.08.2024 Page 3 of 37
workman, who, himself has abandoned his job. The management
has also denied the receipt of notices dated 10.08.2015 and
31.08.2015 or for that matter the receipt of any notice from the
O/o Labour Commissioner, Pushpa Bhawan, Pushp Vihar, New
Delhi. The management has also denied that the petitioner had
ever visited the office of the respondent either for release of his
salary or for his reinstatement, since the date of his alleged termination. In fact, according to management, the services of workman were never terminated by the management and it is the workman who had abandoned the services without any intimation and that the management had no means to trace him out as he was not found at his address available with the management. The management has thus prayed for dismissal of the claim of workman with exemplary costs, which, according to management, has been filed by the workman to extort money from the respondent.
8. Rejoinder to the aforesaid written statement was thereafter filed on behalf of workman on 05.10.2018, wherein, the workman has once again reiterated the averments made by him in his statement of claim and has denied the contrary averments made by the management in its written statement.
9. Thereafter, on the basis of pleadings of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 12.07.2019:-
(i) Whether the service of the workman has been terminated illegally and unjustifiable by the management? OPW
(ii) Whether the workman had abandoned the job?LIR No. 7257/2016
Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 4 of 37 OPM
(iii) Relief.
10. Workman has thereafter examined himself as WW-1, i.e. as a sole witness in support of his case and has tendered his evidence by way of affidavit Ex. WW1/A along with following documents:-
(i) Ex.WW1/1 to Ex.WW1/4: Demand notices dated 10.08.2015 and 31.08.2015 alongwith postal receipts.
(ii) Ex.WW1/5: Complaint dated 10.08.2015 of the workman to the Asst. Labour Commissioner.
(iii)Ex.WW1/6: Copy of claim of the workman before the Assistant Labour Commissioner.
(iv) Ex.WW1/7: Copy of increment letter.
(v) Ex.WW1/8: Police complaint.
(vi) Ex.WW1/9: Copy of confidential report of the workman
(vii)Ex.WW1/10: Copy of discharge Summary of the workman issued by AIIMS.
(viii)Ex.WW1/11: Copy of medical prescription dated 18.12.2014.
11. WW-1 was duly cross-examined by Ld. AR for management and thereafter, on a separate statement of Ld. AR of workman, workman's evidence was closed vide order dated 15.12.2022.
12. Ms. Vandana Kapuria, sole Proprietor of the management, has thereafter examined herself as MW-1 and has tendered her evidence by way of affidavit Ex.MW1/A.
13. Besides, Sh. Manjeet Singh Yadav, Assistant Manager from the office of New India Assurance Company Ltd., has been LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 5 of 37 examined by the management as MW-2, who has tendered the following documents in his evidence:
(i) Ex.MW2/1: Certified copy of Insurance Policy no.
31200011120100000058 for the period 13.06.2012 to 12.06.2013 alongwith terms and conditions.
(ii) Ex.MW2/2: Compliance certificate in terms of Section 64 VB of the Insurance Act, 1938.
(iii) Ex.MW2/3: Certified copy of claim form
(iv) Ex.MW2/4: Certified copy of letter dated 08.05.2014 addressed to management.
(v) Ex.MW2/5: Certified copy of Preliminary Survey Report dated 10.06.2013.
(vi) Ex.MW2/6: Certified copy of Final Survey Report dated 19.09.2013.
(vii) Ex.MW2/7: Certified copy of Investigation Report dated 06.08.2014.
14. Sh. Dinesh Kumar, Sub-Officer from Delhi Fire Service (HQ) has been examined by the management as MW-3 and he has tendered the fire report details dated 04.06.2013 as Ex. MW3/1.
15. MW-1 was duly cross-examined by Ld. AR for workman, whereas, MW-2 and MW-3 were not cross-examined by him despite opportunity. No other witness was examined on behalf of the management. Accordingly, on the submission of Ld. AR for management, management's evidence was closed vide order dated 21.02.2024.
16. Final arguments were thereafter heard on behalf of both the parties. It is submitted by Ld. AR for workman that the workman has been able to prove all the averments made by him in his LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 6 of 37 statement of claim by way of his uncontroverted testimony in the form of affidavit Ex. WW1/A, which is duly corroborated by the documents Ex. WW1/1 to Ex. WW1/11. Even otherwise, according to him, there is no denial on the part of management regarding the existence of employer-employee relationship between the parties and since it is the management who has taken a plea regarding abandonment of its services by the workman, it was incumbent upon the management to prove the same by leading cogent evidence.
17. He submits that MW-1, during his cross-examination, has pleaded ignorance as to whether the management had sent any written notice to the workman either directing him to show cause or to join his duties with the management, when the workman had allegedly absented himself from his duties. He submits that though MW-1 has volunteered that the workman was telephonically contacted by HR Official of the management and even some co-workers were sent to the residence of the workman to call him on duty, however, the management has failed to file any document in support of the aforesaid plea of MW-1. He submits that MW-1 has further admitted during her cross- examination that neither any written notice nor any warning in writing was issued by the management to the workman regarding his alleged changed behavior and frequent absence as per the para no. 3 and 4 of the affidavit Ex. MW1/A.
18. It is further submitted by him that though the management, in its written statement, has denied the receipt of demand notices dated 10.08.2015 and 31.08.2015 from the workman, however, during her cross-examination dated 04.09.2023, MW-1 has LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 7 of 37 admitted that the address of the management mentioned in demand notice Ex. WW1/1 was the correct address of management no. 1. Moreover, according to him, during her cross-examination, MW-1 has not even specifically denied the receipt of demand notice from the workman. It is further submitted by Ld. AR for workman that though the management, in its written statement, has denied the receipt of any notice by the management from the labour department, however, as per the report of labour inspector Ex. WW1/6, MW-1 had appeared before the Labour Inspector and has refused to take the workman on job. He submits that a bare perusal of the inspection report Ex. WW1/6 shows that the management had not even taken the plea of abandonment of his services by the workman during the proceedings before the Labour inspector. The aforesaid plea, on the part of management, according to AR of workman, is thus clearly an after thought in order to defeat the claim of the workman.
19. He further submits that there is no plea on the part of MW- 1, during her cross-examination, that when the alleged co- workers had visited the address of workman to call him on duty, the workman was not found available at his address. Under the aforesaid circumstances, according to him, it was incumbent upon the management to serve a show cause notice upon the workman, in case the workman had been absenting from his duties, as alleged by the management, before presuming abandonment of services on his part. Since, according to Ld. AR of workman, the management has admittedly not served any notice upon the workman requiring him to resume his services LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 8 of 37 with the management, nor, has the management conducted any inquiry into the alleged unauthorized absence of workman, the management has failed to prove the abandonment of services by the workman.
20. On the other hand, according to him, the workman has has consistently taken a plea regarding termination of his services by the management on 15.02.2015 and the aforesaid testimony of the workman has remained uncontroverted. Thus, according to him, the workman has been able to prove illegal termination of his services by the management w.e.f. 15.02.2015. It is thus, submitted by Ld. AR for workman that workman is entitled to his reinstatement with full back wages since the management has failed to prove that from the date of termination of his services, by the management, the workman was gainfully employed. In support of his aforesaid submissions, Ld. AR for workman has relied upon the following judgments:
(i) Shakuntla Export House (P) Ltd. Vs. PO Labour Court-X and Anr. 117 (2005) DLT 479.
(ii) M/s Fateh Chand v. Presiding Officer, Labour Court & Anr.2012 LAB. I.C. 840.
(iii) MCD Vs. Naresh Kumar and Anr. 2008 (1) SLJ 541 Delhi
(iv) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidhayalya and Ors. 2013(11) SCALE 268
21. On the other hand, it is submitted by Ld. AR for management that the case of the workman is fraught with contradictions and hence, the Court cannot rely upon the testimony of workman as a proof of his alleged illegal LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 9 of 37 termination by the management. He submits that the workman has mentioned 2 different dates, of his alleged illegal termination by the management, in para 3 and para 4 of his affidavit Ex. WW1/A. Though, in para 3 of his evidence by way of affidavit, according to him, WW-1 has alleged the date of termination of his services by the management to be 15.02.2015, however, in para 4 of his evidence by way of affidavit, he has mentioned the date of termination of his services as 22.08.2014.
22. Similarly, according to him, in para 5 of his evidence by way of affidavit, the workman has alleged service by him upon the management of two demand notices dated 10.06.2015 and 31.08.2015, however, a bare perusal of the demand notices, Ex. WW1/1 and Ex. WW1/3 shows that the same are dated 10.08.2015 and 31.08.2015 respectively. Similarly, according to him, though the workman has deposed in para 6 of his evidence by way of affidavit that he had filed a complaint with the labour inspector on 07.01.2015, however, as per the copy of complaint Ex. WW1/5, of the workman to the Assistant Labour Commissioner, the same is dated 10.08.2015. On the other hand, according to him, the alleged report of the Labour Inspector Ex. WW1/6 refers to a complaint of the workman dated 11.08.2015.
23. He submits that MW-1 has categorically deposed that the workman had started absenting himself from the duty of management since January 2015 and had not reported back on duty for a considerable period despite visits of various co- workers of the workman to his last known address available with the management. Under the aforesaid circumstances, according to him, it was reasonable for the management to presume LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 10 of 37 abandonment of his services by the workman and it was not mandatory for the management to conduct any inquiry into the unauthorized absence of the workman.
24. He further submits that the plea of management, regarding self abandonment of its services by the workman, is further corroborated by the fact that the workman has allegedly sent the first demand notice to the management only on 11.08.2015 i.e. after an expiry of almost 6 months from the date of his alleged termination. He submits that the workman has even failed to prove the service of alleged demand notices Ex. WW1/1 and Ex. WW1/3 upon the management, in as much as, a bare perusal of the postal receipt Ex. WW1/2 regarding dispatch of alleged first demand notice of the workman to the management shows that the address of the management has been wrongly mentioned therein that of Sarita Vihar, whereas, the correct address of the management was admittedly Plot no. 36, Basement, Pocket-II, Jasola Vihar, New Delhi- 110025, which has also been mentioned by the workman in his statement of claim.
25. Similarly, according to him, a bare perusal of the postal receipt Ex. WW1/4, regarding dispatch of demand notice Ex. WW1/3, shows that even the aforesaid demand notice dated 31.08.2015 was also sent by the workman to New Friends Colony, New Delhi, whereas, the address of the management is that of Jasola Vihar, New Delhi. He submits that there is no admission on the part of MW-1 during her cross-examination regarding receipt of either of the demand notices by the management from the workman and merely because she has expressed her ignorance about the receipt of demand notice by LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 11 of 37 the management due to lapse of considerable time period, the same by itself shall not be sufficient to presume an admission on her part of receipt of demand notices Ex. WW1/1 and Ex. WW1/3, particularly when, the same could not have been served upon the management due to mentioning of incorrect address of the management on the postal receipts Ex. WW1/2 and Ex. WW1/4.
26. Mere admission on the part of MW-1, during her cross- examination, regarding the address of the management in notice Ex. WW1/1 being the correct address of the management, according to him, shall not be sufficient to presume the service of the aforesaid notice upon the management in view of discrepancy in the address of the management in the postal receipts and in view of the fact that even as per own admission of the workman, the correct address of the management is Plot no. 36, Basement, Pocket-II, Jasola Vihar, New Delhi-110025. Even in his complaint dated 10.08.2015 to the Assistant Labour Commissioner, according to Ld. AR for management, the address of the management has been wrongly mentioned by the workman and hence, there was no occasion for the management to receive notice of any proceedings conducted by the Assistant Labour Commissioner or for that matter by the Labour Inspector on the basis of the aforesaid complaint of the workman.
27. He submits that the workman has failed to prove the report Ex. WW1/6 of the Labour Inspector by summoning either the Labour Inspector or the record from the office of Assistant Labour Commissioner to prove that the proprietor of the management had appeared before the Labour Inspector and had LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 12 of 37 refused to take the workman on job. On the other hand, according to him, the workman, during his cross-examination, has admitted that he was not residing at the address given by him to the management since around 6 months prior to his last working day with the management and hence, the plea of the management, in its written statement, that he was not found available at his last known address by the co-workers, who had visited his last known address on the instructions of management to call the workman on duty, stands corroborated.
28. Under the aforesaid circumstances, according to him, no purpose would have been served by sending any notice by the management to the workman at the aforesaid address requiring him to resume his duties with the management and the management had no option but to wait for the workman to report on duty for a considerable period. He submits that the mala-fide intention on the part of the workman is further apparent from the fact that he has never disclosed his correct address to this Court, in as much as, the address of the workman mentioned in the statement of claim was not his correct address and was, in fact, the address of his union. Even, in his evidence by way affidavit, according to Ld. AR for management, the workman has mentioned the address of management as his address.
29. Also, during his examination in chief before the Court, according to Ld. AR for management, the workman has mentioned the address of management as his address and it was during his cross-examination dated 12.10.2022, that he has given his address as Jhuggi, Near Chawla Hotel, Okhla Phase-II, New Delhi while stating that he was residing at the aforesaid address LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 13 of 37 since around the year 2014. Even otherwise, according to him, the Court cannot act upon the sole testimony of the workman regarding his alleged illegal termination, in as much as, he was found to be taking contradictory pleas.
30. It is submitted by Ld. AR for management that as per the statement of claim, services of the workman were illegally terminated by the management, annoyed by the demands of the workman for statutory benefits, however, during his cross- examination, he has categorically admitted that he was being given all statutory benefits by the management during the course of his employment. He submits that the inability of the management to produce the record in support of his case was due to reasons beyond its control, in as much as, admittedly a massive fire had taken place in the office of management, wherein, the entire record of the Management got destroyed. The aforesaid fact, regarding massive fire at the place of management, according to him, has not only been admitted by the workman, but has also been proved by the management by examining MW-2 and MW-3.
31. He submits that during his cross-examination, the workman has tried to take a plea that he had given a written application to the management for availing leave in February 2015 for his eyes treatment, however, he has failed to produce any acknowledgment regarding submission by him of any such application to the management. Once, according to him, the workman has admitted that he had absented himself from his duties, it was incumbent upon him to prove that his services was terminated by the management.
LIR No. 7257/2016Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 14 of 37
32. In support of his aforesaid submissions, Ld. AR for management has relied upon the following judgments:
(i) Diamond Toys Co. (P) Ltd. Vs. Toofani Ram and Ors MANU/ DE/7157/2007
(ii) Chand Singh Vs. Sigma Industries Corporation 2012:DHC:7233
(iii) Water Supply and Sewage Disposal Vs. PO Labour Court and Ors. 201(2013) DLT 50.
(iv) Chunmun Stores (P) Ltd. Vs. Gaurav Chauhan 2021:DHC:3018.
33. I have heard the submissions made on behalf of the parties and have carefully perused the material available on record, in the light of judgments relied upon by Ld. ARs for both the parties. My issues wise findings, on the issues settled by Ld. Predecessor of this Court vide order dated 12.07.2019, are as follows:-
Issue no. (i): Whether the service of the workman has been terminated illegally and unjustifiable by the management? OPW And Issue no. (ii): Whether the workman had abandoned the job? OPM
34. As both the issues no. (i) and (ii) are two sides of the same coin, the same are being dealt with simultaneously. The onus to prove issue no. (i) was upon the workman, since, it is he, who has alleged illegal termination of his services by the management on 15.02.2015. On the other hand, onus to prove issue no. (ii) was upon the management in view of its plea that the workman himself had abandoned his services and his LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 15 of 37 services were never terminated by the management.
35. Though, the workman has alleged that annoyed by his demand for statutory benefits, his services were illegally terminated by the management on 15.02.2015, however, he has failed to place on record any termination letter issued by the management in this regard. Admittedly, no termination letter, terminating the services of the workman w.e.f. 15.02.2015, has ever been issued by the management. On the other hand, according to management, since January, 2015, the workman himself has started absenting from his duties, without any intimation/ information to the management, and thereafter, has never reported on duty at the establishment of the management. It is further the case of management that it has sent the co- workers of the claimant to his last known address, available with the management, to call the workman on duty, however, the workman was not found available at the aforesaid address. Since, according to management, the workman had failed to report on duty and it has not received any notice whatsoever from the workman or from any other competent authority for a considerable period, the management has presumed that the workman has abandoned the services of the management.
36. Ld. AR for workman has taken a plea that in case of unauthorized absence, it was incumbent upon the management to serve a notice upon the workman requiring him to resume the duties and on his failure to do the needful, to conduct an inquiry against him before termination of his services. On the other hand, it is submitted by Ld. AR for management that in case of continuous absence of the workman from his duties for a long LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 16 of 37 duration, the management was well within its right to presume abandonment of services on his part and since the management has not treated the unauthorized absence of workman as a misconduct nor the management has terminated his services as a punishment, there was no requirement for the management to conduct any inquiry against the workman.
37. I have heard the submissions made on behalf of the parties and have carefully perused the material available on record in the light of various judgments relied upon by them in support of their respective pleas. Considering the rival submissions made on behalf of the parties, two issues arise for consideration of this Court:
i) whether in the peculiar facts and circumstances of the case, before presuming the abandonment of services by the workman, it was incumbent upon the management to hold an inquiry into unauthorized absence of the workman from his duties.
ii) Whether the conduct of workman in not reporting on duty for a considerable period, without raising any grievance regarding his alleged illegal termination w.e.f. 15.02.2015 either with the management or with any competent authority for over a period of six months, is sufficient to presume abandonment by him of his services.
38. In M/s Fateh Chand's case (Supra), relied upon by Ld. AR for workman, it was observed by Hon'ble Delhi High Court that abandonment of service is different from absenteeism, in as much as, abandonment of services is the voluntary relinquishment of one's service with the intent not to resume the LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 17 of 37 same and it is a matter of inference to be drawn from the facts and circumstances of the case. It has further been observed by Hon'ble Delhi High Court that it is for the management to bring on record sufficient material to show that the employee had abandoned the service and the abandonment cannot be attributed to an employee without their being sufficient evidence.
39. The Onus to prove the abandonment of services on the part of an employee, in my considered opinion, can be discharged by the management not only by leading direct evidence in the form of the documents/records, but also, by way of cross-examination of the workman or for that matter from the documents relied upon by the workman himself, besides, the admissions elicited from the workman during his cross-examination or otherwise.
40. Ld. AR for workman has derived the attention of this Court to the Judgments of Hon'ble Delhi High Court in Shankuntla Export House (P) Ltd's case (Supra) and M/s Fateh Chand's Case (Supra) to contend that in every case, wherein, a plea is taken by the employer regarding abandonment of services by the workman, it is incumbent upon the employer to conduct an inquiry before terminating the services of the workman. I have carefully gone through both the aforesaid judgments of Hon'ble Delhi High Court besides the judgments relied upon by Ld. AR for management.
41. So far as the judgment of Hon'ble Delhi High Court in Shankuntla Export House (P) Ltd's case (Supra) is concerned, a bare perusal of the same shows that Hon'ble Delhi High Court in the aforesaid judgment has upheld the finding of Labour Court LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 18 of 37 to the effect that the management has failed to prove the abandonment of services on the part of workman primarily on the ground that the management had taken two contradictory pleas of abandonment and payment of notice pay and retrenchment compensation, which, as per Hon'ble Delhi High Court could not have stood together. Additionally, after a reference to the judgment of another co-ordinate bench of Hon'ble Delhi High Court in MCD Vs. Sukhvir Singh& Ors. 1994(2) SLR 532, it was held that even no inquiry in respect of abandonment of services by the workman was held by the management as per the mandate of judgment of Hon'ble Delhi High Court in MCD Vs. Sukhvir Singh.
42. It is further significant to note in this regard that in Shankuntla Export House (P) Ltd's case (Supra), a plea was taken by the management that the services of the workman were terminated by the management after payment of all his legitimate dues including notice pay and retrenchment compensation. So far as the Judgment of Hon'ble Delhi High Court in MCD Vs. Sukhvir Singh 53(1994)DLT821:
1994(2)SLR532 referred to by Hon'ble Delhi High Court in Shankuntla Export House (P) Ltd's case (Supra), is concerned, the relevant para of the aforesaid judgment reads as follows:
"5. Once it is held that the employment of the first respondent was not for a specific period, the Court shall have to proceed that the denial of employment to the first respondent by the corporation for whatever reason shall have to be only according to law. If he had abandoned the employment certainly that could have been a ground for holding of an inquiry against him LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 19 of 37 and pass appropriate order. That has not been done in the instant case. In the circumstances, I do not find any merit in the writ petition. It is dismissed."
43. The issue as to whether an inquiry is mandatory for the management in case of abandonment of service on the part of workman or not has been specifically dealt with by Hon'ble Delhi High Court in Diamond Toys Company (P) Ltd's case (Supra). Relevant observations of Hon'ble Delhi High Court in this regard are being reproduced hereinbelow:
"6. It is commonly known that a person, who is working in the industry keeps on trying for better jobs and better opportunities. The moment he gets better job, he is free to leave his previous employer. The industrial law does not require him to pay any compensation to the employer while leaving his job, as the industrial laws require an employer to pay retrenchment compensation when employer wants to terminate the workman. Thus, there are no fetters on the workman on leaving the job while there are fetters on the employer in terminating the service of an employee. If a workman leaves his job all of a sudden and stops attending the workplace of the employer, Industrial Dispute Act does not put any obligation on the employer to call back the workman and request him to come and join his duties. Such a request can be made by the employer only when employer considers that a useful workman should not leave the job or where a workman is governed by certain rules and regulations under State employment and the employer is supposed to hold an enquiry under the service rule before termination of service of an employee. Where the workman is free to leave and join another employer without even a notice and without obtaining a no objection from his employer, the employer cannot be compelled to call such a workman for joining the duties or to conduct an enquiry into the absence of the workman and then terminate his services. Leaving the services of an employer by the workman is a valid mode of his LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 20 of 37 abandonment and there is no illegality attached to a workman leaving the services of his previous employer and joining another employer. If the employer does not consider the abandonment of service or leaving the service by a workman as a misconduct, the law cannot force the employer to consider such abandonment as a misconduct and hold an enquiry. Misconduct of an employee is the one which an employer considers as the misconduct. An enquiry is required to be held only where an employer intends to impose punishment on the employee for an alleged misconduct. if an employer does not intend to impose any punishment on the employee and considers that if the employee has left his service, let it be so, the law cannot compel the employer to hold an enquiry and punish an employee for the misconduct.
7. I consider that it was not necessary for the employer to hold an enquiry into the abandonment of the service by the respondent. It was for the respondent to prove that his services were terminated for some reasons by the employer or without any reason by the employer. The respondent had taken a stand which was found to be false. Under these circumstances, the Labour Court's conclusion that it was a case of retrenchment is perverse." (emphasis mine)
44. A bare perusal of para 6 of the aforesaid judgment as quoted hereinabove, shows that it was categorically held by Hon'ble Delhi High Court that if a workman leaves his job all of a sudden and stopped attending the workplace of the employer, Industrial Disputes Act does not put any obligation on the employer to call back and request him to come and join his duties. Such a request, as per the aforesaid judgment, can be made by the employer only when the employer considers that a useful workman should not be leave the job or where the employer is supposed to hold an inquiry under the service rules before termination of services of an employee. It has further LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 21 of 37 been held that if the employer does not consider the abandonment of services or leaving the services by workman as a misconduct, the law cannot force the employer to consider such an abandonment as a misconduct and hold any inquiry.
45. It has further been laid down in the aforesaid judgment that the misconduct of an employee is the one which an employer considers as the misconduct and an inquiry is required to be held only where an employer intends to impose punishment on the employee for an alleged misconduct. It is further held that if an employer does not intend to impose any punishment on the employee and considers that if the employee has left his services, let it be so the law cannot compel the employer to hold an inquiry and punish an employee for the misconduct. In view of the aforesaid authoritative pronouncement, in my considered opinion, in case of abandonment of services by the workman, an inquiry by the management is mandated in the following situations:
(i) When the management is required under the service rules to hold an enquiry before termination of services of an employee on account of continued absence; or
(ii) When the employer considers the abandonment of service by the workman as a misconduct and intends to impose a punishment upon him.
46. A similar view has been taken by Hon'ble Delhi High Court in K. L. Malik & Sons P. Ltd. v. Ram Praband Tiwari WP(C) no. 7790/2003 decided on 19.02.2013 and in Water Supply & Sewage Disposal v. PO Labour Court & Ors. 201(2013)DLT50.
LIR No. 7257/2016Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 22 of 37 Relevant observations of Hon'ble Delhi High Court in Water Supply & Sewage Disposal's case (supra) are as follows:
"21. I do not find any merit in the submission of the respondent that the absence of any notice or disciplinary action can lead to the inference that the respondent workman had not abandoned his services. I also reject the submission that notice should have been issued to the respondent, to enquire into his absence. A daily wage worker is paid in accordance with the number of days he reports for work, and if one daily wager does not report for work, it is open to the management to engage another one on the day(s) of his absence. It is not open to the management to raise a grievance if a daily rated worker chooses to work elsewhere, or chooses not to report for work for whatsoever reason. This Court in Diamond Toys Co. (P) Ltd. v. Toofani Ram, MANU/DE/7157/2007 : W.P. (C) No. 4501/2004 decided on 07.02.2007, has held that it is not obligatory on the employer to serve a notice upon, or hold an inquiry against a worker, who starts absenting himself from duty.
22. This court has considered a similar submission regarding the need to hold an enquiry in K.L Malik & Sons P Ltd. v. Ram Prabandh Tiwari, WP (C) No. 7790/2003, decided on 19.02.2013 and rejected the argument that an enquiry is required to be held in every such instance of absence. In the aforesaid case, it was observed that "It is only when the employer wishes to take punitive action against the workman that he needs to hold an enquiry after issuance of a charge sheet under the rules, or in compliance with the principles of natural justice, as the case may be."
23. A similar argument was also considered by this Court in Mgt. of Horticulture v. Hakoo & Jagar Khan in WP (C) No. 880/2004 decided on 21.03.2013 and in Satpal v. Delhi Jal Parday And Mal Vyayan Sansthan in WP (C) No. 14/2009 decided on 15.04.2009 where the Court rejected the submission that the management was obliged to serve a notice and hold an enquiry to establish a case of LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 23 of 37 abandonment...."
47. In fact, in the aforesaid judgment, Hon'ble Delhi High Court has also referred to its earlier judgment in MCD v. Sukhvir Singh's case (supra) and has distinguished the same in the following manner:
"24. The decisions relied upon by the respondent are of no avail. The Respondent's reliance on Sukhvir Singh (supra) is misplaced as it has no application to the facts of the present case. The aforesaid was not a case where there had been an extremely long delay in raising a grievance. Therefore, in that case, an inference could not have been drawn against the workman that he had abandoned his services. However, in the present case, a delay of seven years in raising any claim, grievance or an industrial dispute leads to a reasonable inference that the respondent was not interested in working with the petitioner and had, in fact, abandoned his services."
48. Recently, in Vijay S. Sathaye v. India Airlines Ltd. & Ors. (2013)10 SCC 253, Hon'ble Supreme Court while referring to various judgments on the subject of abandonment of services by an employee and necessity of an inquiry by the employer has laid down that though absence from duty in the beginning may be a misconduct, however, when the absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bond of service comes to an end automatically without requiring any order from the employer. It has further been held that in case a person absents from duty beyond the period for which a leave of any kind may be granted, there is no need to hold an inquiry or to give any notice and he LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 24 of 37 can be treated to have resigned or ceased to be in service. Relevant observations of Hon'ble Supreme Court in the aforesaid judgment are being reproduced herein below for ready reference:
"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC 1567] this Court held as under : (AIR p. 1570, para 6) "6. ... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."
(See also Shahoodul Haque v. Registrar, Coop. Societies [(1975) 3 SCC 108 : 1974 SCC (L&S) 498 : AIR 1974 SC 1896] .)
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service. (See State of Haryana v. Om Parkash [(1998) 8 SCC 733 : 1999 SCC (L&S) 262] .)
15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah [AIR 1964 SC 1272] , while dealing with a similar case, this Court observed : (AIR p. 1275, para 5) "5. ... Abandonment or relinquishment of service is LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 25 of 37 always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590 : 1979 SCC (L&S) 76 : AIR 1979 SC 582]
16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65 :
2000 SCC (L&S) 601] and Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC 2783] this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC 42 :
(2007) 1 SCC (L&S) 327] , Chief Engineer (Construction) v. Keshava Rao [(2005) 11 SCC 229 : 2005 SCC (L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC 462 : (2009) 2 SCC (L&S) 689]."
49. In the case in hand, admittedly the management has not passed any termination order terminating the services of the workman and hence, in the facts and circumstances of the present case, it cannot be presumed that the management has terminated the services of the workman while considering the abandonment of services by the workman to be a misconduct. Since, the management in the present case has not passed any formal termination order thereby terminating the services of the management on account of his long unauthorized absence, in my considered opinion, no inquiry was required to be conducted by the management.
50. Now the next question which arises for consideration is LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 26 of 37 whether the management has been able to establish, from the material available on record, the abandonment of services by the workman. The Court is not oblivious of the law laid down by Hon'ble Suprem Court in G.T. Laad & Ors. Vs. Commercial and Fibers India Ltd. (1979) 1 SCC 590 that to constitute abandonment there must be total or complete giving up duties so as to indicate an intention not to resume the same and an inference that an employee has abandoned or relinquished his services is not easily drawn unless from the length of absence or from other surroundings circumstances, an inference to that effect can be legitimately drawn and it can be assumed that an employee intended to abandon the service. In fact, in the aforesaid judgment, Hon'ble Supreme Court has also categorically held that whether or not there has been a voluntarily abandonment of service by a workman is a question of fact which has to be determined in the light of surrounding circumstances of each case.
51. In Chief Engineer (Construction) Vs. Keshva Rao (D) by LRs (2005) 11 SCC 229, Hon'ble Supreme Court has considered a delay of anyear and five months in issuing a notice by the workman to the management seeking his reinstatement into the services, after alleged termination of his services by the management, was considered by Hon'ble Supreme Court as a circumstance indicating abandonment of service by the workman. Moreover in Water Supply & Sewage Disposal's Case(Supra), Hon'ble Delhi High Court has considered the subsequent conduct of the workman in not raising any grievance against his alleged illegal termination for nearly 7 years to be LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 27 of 37 sufficient to presume abandonment of services on his part particularly when the workman had failed to lead any independent or credible evidence, except by way of his own self serving statement, before the Labour Court to establish that his services were terminated by the management.
52. It is submitted by Ld. AR for management that even in the present case the workman has failed to raise any grievance as to his illegal termination with the management for about a period of 6 months from the date of his alleged termination, in as much as, the first demand notice seeking his reinstatement was allegedly sent by the workman to the management after expiry of almost 6 months from the date of his alleged termination, that too, not to the correct address of the management. On the other hand, according to Ld. AR for workman, a delay of almost 6 months in serving a notice seeking his reinstatement by the workman cannot be considered to be a relevant fact to presume abandonment of services on the part of workman particularly when the management has failed to issue any letter to the workman requiring him to resume his services with the management or to offer reinstatement of the workman in the services of the management even before the Conciliation Officer.
53. As has already been observed hereinabove, in Chief Engineer (Construction) case (supra) a delay of about a year and five months on the part of workman seeking his reinstatement with the management was considered by Hon'ble Supreme Court to be unreasonable and a relevant circumstance to presume abandonment of the services on the part of workman, whereas, in another case before Hon'ble Delhi High Court in LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 28 of 37 Water Supply & Sewage Disposal case (supra), Hon'ble Delhi High Court has considered a delay of 7 years to be circumstance indicating abandonment of services on the part of workman.
54. Thus, in my considered opinion, no straight jacket formula can be laid down as to the time period during which a workman should approach the management with a request for reinstatement into his services, after his alleged termination, failing which it shall be presumed that he had abandoned the services of the management. As has already been observed hereinabove, the workman in the present case has failed to lead any independent or credible evidence, otherwise than by way of his self serving statement, that his services were terminated by the management on 15.02.2015 annoyed by his demand for statutory benefits and in fact, he had failed to raise any dispute with the management until expiry of almost 6 months from the date of his alleged termination seeking his reinstatement into the services of management.
55. On the other hand, it has been categorically deposed by MW-1 in her evidence by way of affidavit that when the workman stopped reporting on duty since the month of January 2015, the management had sent several co-workers to the last known address of the workman available with the management, however, the workman was not found available at the aforesaid address and since the management had not heard anything from the workman for a considerable period, it was presumed that he has abandoned his services. Despite the aforesaid fact, admittedly the management has not considered the absence of the workman during the aforesaid period as a misconduct and LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 29 of 37 has not passed any formal order terminating his services on account of the aforesaid absence.
56. The workman during his cross-examination has categorically admitted that he had already shifted from the address, which was provided by him to the management, almost 6 month prior to his last working day with the management and hence, in my considered opinion, the testimony of MW-1 regarding her sending a co-workers to the last known address of the workman to call him on duty and regarding his non availability at the aforesaid address stands corroborated by the aforesaid admission on the part of workman. The aforesaid testimony of MW-1, even otherwise, has remained uncontroverted during her cross-examination, in as much as, it was not even suggested to her that no co-worker of the claimant had ever been sent by the management to the residence of the workman to call him back on duty. The only suggestion given by Ld. AR for workman to MW-1 was to the effect that MW-1 has not filed any document in support of her aforesaid plea and admittedly no written notice was sent by the management to the workman either calling upon him to show cause or calling upon him to join his duties when he had allegedly absented himself from his duties.
57. Once, the address of the workman available with the management was found by the management to be incorrect after personal visit of co-workers to the aforesaid address of the workman, in my considered opinion, no purpose would have been served by sending any notice by the management to the workman requiring him to resume his duties, more so, when, LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 30 of 37 admittedly, the workman himself has not reported on duty at the office of management after 15.02.2015 and had failed to raise any grievance either with the management or with any competent authority regarding his alleged termination by the management.
58. No adverse inference, can even be raised by this Court against the management on account of non production of the record such as muster roll etc by the management before this Court in view of the admitted position that a fire had, in fact, taken place at the office of the management, wherein, the record of all the employees of the management was allegedly destroyed. The aforesaid fact regarding fire at the place of management has not only been admitted by the workman but has also been proved by the management by examination of MW-2 and MW-3. The workman has also failed to prove service of either of the demand notices Ex. WW1/1 and Ex. WW1/3 dated 10.08.2015 and 31.08.2015 respectively upon the management, in as much as, no proof of delivery of the aforesaid notices to the management has been placed on record by the workman.
59. No presumption in terms of provisions of Section 27 of the General Clauses Act can even be raised by this Court regarding service of the aforesaid notices upon the management on the basis of postal receipts Ex. WW1/2 and Ex. WW1/4 respectively, in as much as, both the postal receipts admittedly record the incorrect address of the management, whereas, a presumption regarding of service of an article by post after prepayment of postal charges can arise only in case the notice had been posted by a person to the correct address of the LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 31 of 37 addressee. Merely because, MW-1, during her cross- examination, has pleaded ignorance of receipt of the aforesaid notices, no adverse inference can be raised by the Court that the notices were duly served upon the management, in view of the admitted position that both the postal receipts regarding dispatch of the aforesaid notices record incorrect address of the management.
60. The workman has also failed to prove the report of the Labour Inspector Ex. WW1/6 by examining the Labour Inspector or by summoning any record of service of notice by the Labour Inspector upon the management. For want of proof of the aforesaid document or any other document suggesting service of any notice of the conciliation proceedings upon the management, the management can't be non-suited on the ground that it had failed to reinstate the workman into the service despite receipt of notice of conciliation proceedings or else the notice from the Labour Inspector.
61. It is further significant to note in this regard that the workman in his statement of claim has taken a plea that his services were illegally terminated by the management annoyed by his demand for statutory benefits such as appointment letters, leave book, salary slip, attendance card, attendance register, weekly holiday, annual leaves, overtime and minimum wages etc, however, during his cross-examination the workman has admitted that he used to get holidays on the occasion of festivals. He has further admitted that he used to get his salary on time besides the bonus. Though, initially, he has denied that any allowance was being paid to him in addition to his salary, LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 32 of 37 however, later on, he has admitted that he was being paid travel allowance for the travel performed by him due to official work in addition to his salary. He has failed to produce any document to prove that he had ever worked overtime for the management.
62. Under the aforesaid circumstances, in my considered opinion, since the workman has failed to prove that he was not getting statutory benefits from the management, demand of which had annoyed the management leading to termination of his services, the very basis of the claim of the workman got knocked out and once the basis on which the workman has claimed that his services were terminated by the management, the onus stood shifted to him to show that his services were actually terminated by the management and the reasons thereof by way of positive evidence. However, as has already been observed hereinabove, the workman has failed to lead any positive evidence regarding termination of his services by the management except by way of his self serving statement.
63. The self serving statement of the workman cannot even be accepted in view of various contradictions in his testimony, in as much as, he was found to be taking contradictory stands in para 3 and 4 of his evidence by way of affidavit regarding the date of his alleged illegal termination by the management. Though, in para 3 of his evidence by way of affidavit, he has mentioned the date of his alleged illegal termination as 15.02.2015, however, in para 4 of his affidavit, he has mentioned the date of termination of his services as 22.08.2014. Moreover, though, in para 6 of his evidence by way of affidavit, he has alleged the date of his complaint to the Assistant Labour Commissioner to be LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 33 of 37 07.01.2015, however, on a bare perusal of the document Ex. WW1/5 shows that the complaint to Assistant Labour Commissioner was filed by the workman on 10.08.2015. On the other hand, the alleged report of the Labour Inspector Ex. WW1/6 makes a reference to some complaint of the workman dated 11.08.2015.
64. While taking the aforesaid view, I derive support from the following observations of Hon'ble Delhi High Court in Diamond Toys Company (P) Ltd's case (Supra).
"5. The very basis of the claim of the workman regarding termination of his service by the management was that he made demands for appointment letter and other legal benefits under law and on making these demands the management got annoyed and terminated his services. This basis got knocked out when the workman admitted in his evidence that appointment letter was issued to him and the legal benefits like provident fund, ESI etc. were being given to him and he was being paid wages after obtaining his signatures in the wage register. He had not stated in his statement of claim - when he put overtime, how much was his overtime which was refused to him or when he applied for leave which was not granted to him. Once, the basis on which a workman claimed that he was terminated stands knocked out, a heavy onus shifts to the workman to show that his services were actually terminated by the management and to show the reasons for termination. The termination is a positive act of the management and management has to do this act for some reason. The respondent was working as a helper. Helper is an unskilled person and appointed to do some job and unless there is some reason his service would not be terminated by the management. Moreover, the workman was working with the management for more than two years he had gained experience with the management during this period and had become more useful for the management day by day. Why LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 34 of 37 the management should have terminated his services without any reason, when the statutory period of 240 days was already there and any break in service would not have helped management. The falsity of the claim of the workman is writ large. In the notice served upon the management, he described himself as a mechanic, which is a skilled workman. In the statement of claim he described himself as a karigar while actually he was appointed as an helper. He harped upon providing of legal facilities like appointment letter, ESI, Provident Fund, wage register etc. while he admitted in his cross examination that all legal facilities were being given to him."
65. A bare perusal of the aforesaid of observations of Hon'ble Delhi High Court indicates that the facts of the present case are almost similar to the facts of the case before Hon'ble Delhi High Court in the aforesaid judgment. In view of the aforesaid discussion, in my considered opinion, the workman has failed to prove that his services were ever terminated by the management much less the same were terminated illegally. Issue no. (i) is thus decided against the workman.
66. So far as the issue of abandonment of services by the workman is concerned, in my considered opinion, despite the fact that the management has not sent any notice in writing to the workman calling him on duty when the workman had stopped reporting on duty, however, it has been proved through the uncontroverted testimony of MW-1 that the management had made all possible efforts for calling the workman on duty by sending the co-workers at his last known address. Since, admittedly the workman had shifted from his address available with the management about six months prior to his last working day with the management, no purpose would have been served if LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 35 of 37 the management would have sent any notice to the last known address of the management. Even otherwise, in view of the authoritative pronouncements of Hon'ble High Court of Delhi as well as Hon'ble Supreme Court referred to hereinabove the management was not even required to call the workman on duty.
67. The intent of the workman to abandon his services is further apparent from the fact that he had failed to raise any grievance either with the management or with any other competent authority regarding his alleged illegal termination for almost a period of six months. It is highly unreasonable to presume that a person who has been thrown out of the services and is unemployed since the date of alleged termination of his services shall not raise any grievance with the management and shall not seek reinstatement in his services for almost a period of six months. Even after about six months, conduct of workman in sending demand notices to the management and filing of complaint/claim with the labour department with incorrect address of management despite being fully aware of its correct address and shifting from his address without informing the management about his changed address also indicate towards his intent to abandon the services of the management.
68. Thus, in view of the aforesaid discussion, in my considered opinion, from the material available on record, the management has been able to discharge its onus to prove abandonment of services by the workman. Issue no. (ii) is thus decided in favour of management.
Issue no. (iii): Relief?.
LIR No. 7257/2016Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 36 of 37
69. In view of my findings on issues no. (i) and (ii), since the management has been able to establish abandonment of his services by the workman and the workman has failed to prove termination of his services by the management on 15.02.2015, the workman is not entitled to any relief.
70. Reference dated 01.01.2016 is thus answered in negative in the following terms:-
"The workman Vipin Chander Yadav S/o. Sh. Rajbali Yadav has failed to prove that his services were terminated illegally and/ or unjustifiably by the management, whereas, the management has proved that he himself had abandoned his services, and hence, the workman is not entitled to any relief."
71. Ordered accordingly.
72. Requisite number of copies of this award be sent to the competent authority for publication as per rules. Announced in the open Court on this 17 th day of August, 2024. This Award consists of 37 number of signed pages.
Digitally signedARUN by ARUN KUMAR GARG KUMAR Date:
GARG 2024.08.17 16:36:51 +0530 (ARUN KUMAR GARG) Presiding Officer Labour Court-III Rouse Avenue Court, New Delhi LIR No. 7257/2016 Vipin Chander Yadav Vs. M/s. Enmax Smart Systemz Award dated 17.08.2024 Page 37 of 37