Delhi High Court
Ram Narain Jha vs T.M. Apartments Pvt. Ltd. on 30 November, 2007
Author: Hima Kohli
Bench: Hima Kohli
JUDGMENT Hima Kohli, J.
1. The present petition is directed against the award dated 18.2.2003 passed by the Labour Court whereunder it was held that the petitioner workman was not entitled to any relief against the respondent management.
2. Facts leading to the present petition are that the petitioner workman was appointed as a lift operator with the respondent management w.e.f. 23.3.1991. Allegedly, the petitioner workman reported late to office on 24.1.1992 after which he was called to the Connaught Circus branch of the respondent management, but was made to sit there and was not allowed to work, and finally, on his refusal to sign certain papers, his services were terminated verbally by the respondent management on 28.11.1992, in an illegal manner, without giving any reasons, notice pay etc. As against the alleged termination, the petitioner workman served a demand notice dated 28.2.1992 on the respondent management, but having received no positive reply to the same, an industrial dispute was raised which was referred to the Labour Court in the following terms:
Whether the workman Sh. Ram Narain Jha has abandoned the job of his own or his services have been terminated illegally and/or unjustifiable by the management and if so, to what relief is he entitled and what directions are necessary in this respect?
3. A statement of claim was filed by the petitioner workman, against which the respondent management filed its written statement wherein it raised certain preliminary objections and refuted the claim of the petitioner workman by submitting that he started absenting from work w.e.f. 28.1.1992 without any information and he did not report for duties even after reminders/show cause notice were sent to him and as such he had abandoned his job on his own accord. In his rejoinder, the petitioner workman controverter the stand taken by the respondent management and thereafter both the parties led their evidence and the witnesses of both the parties were duly cross-examined. On the basis of the pleadings of the parties and the evidence adduced, the Labour Court came to the conclusion that the respondent management had asked the petitioner workman to report for duty without prejudice to his rights, not only by issuing letter/notice to him but also before the conciliation officer, despite which the petitioner workman did not join duty. Consequently, by the impugned award dated 18.2.2003 it was held that the services of the petitioner workman were not terminated by the respondent management and in fact, the workman had abandoned the job of his own accord by not reporting to duty despite letters/notices sent to him, and thus he was not entitled to any relief against the respondent management. The present writ petition is directed against the aforesaid award.
4. In the course of arguments, learned Counsel for the petitioner workman submitted that the Labour Court while passing the award, erred in holding that the petitioner workman had himself abandoned his services for the reason that the burden to prove the factum of abandonment was on the respondent management, which it had failed to discharge. It was further submitted that the respondent management had failed to prove that it had sent the letter dated 12.2.1992 to the petitioner/ workman, which formed the basis of the finding of the Labour Court with regard to abandonment. It was stated that in fact the petitioner workman regularly reported for duty, but was not allowed to work by the respondent management, and that there was no voluntary abandonment of service by the petitioner workman.
5. It was averred that the written statement filed before the ALC or the reply of the respondent management to the demand notice cannot be read as calling upon the petitioner workman to report for duties as a threat was held out that if he were to report for duty, he would be arrested as an FIR had already been registered against him.
6. It was urged on behalf of the petitioner workman that assuming there was abandonment of duty by the petitioner workman, the respondent management was still under an obligation to conduct a disciplinary enquiry before terminating his services and the principles of natural justice need to be complied with.
7. In reply to the arguments raised by the counsel for the petitioner workman, learned Counsel for the respondent management submitted at the very outset that in guise of the present writ petition, the petitioner workman has sought re-appreciation of evidence, which is neither the object, nor within the purview of the powers of judicial review exercised by this Court under Article 226 of the Constitution of India. Reference in this regard was made to the judgment of this Court in the case of Municipal Corporation of Delhi v. Asha Ram and Anr. reported in 2005 II AD (Delhi) 285.
8. It was submitted that there was no error in the finding of the Labour Court that the petitioner workman had voluntarily abandoned his services. In this respect reference was made to the show cause notice dated 12.2.1992 addressed by the respondent/management to the petitioner/workman wherein he was asked to report for duty within 7 days, and to the letter/notice dated 7.4.1992 wherein a reference has been made to the aforesaid show cause notice, and it was urged that despite the respondent management giving several opportunities to the petitioner workman, he himself chose not to join duty.
9. It was clarified on behalf of the respondent management that the purported demand notice dated 28.2.1992 stated to have been served by the petitioner workman on the respondent management wherein a demand was made to take the petitioner workman back on duty, was not replied to in detail by the respondent management for the reason that the name of the workman was stated wrongly in the said legal notice. A reference was then made to the other two legal notices dated 16.5.1992 and 19.5.1992 respectively served by the petitioner workman on the respondent management to show that the petitioner workman was not interested in working with the respondent management and was only interested in extracting amount from it illegally on the flimsy ground that his reputation has been damaged.
10. It was also pointed out to the Court that the petitioner workman was initially appointed only on probation. Reliance was placed on the appointment letter dated 23.3.1991 issued to him by the respondent management, and it was stated that even assuming that his services were terminated without conducting an enquiry, such termination cannot be termed as illegal unless the same is stigmatic. Support was sought to be drawn from the judgment rendered by the Supreme Court in the case of Muir Mills Unit of N.T.C. (U.P.) Ltd. v. Swayam Prakash Srivastava and Anr. . It was also urged that in any case the prayer of the petitioner workman that he be granted reinstatement with full back wages was not maintainable for the reason that there was no averment made by him to the effect that he was not gainfully employed during the period of his termination from service and also that it has been more than fifteen years ago that he has abandoned his duty with the respondent management.
11. Relying on the decision of the Supreme Court in the case of Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr. , it was lastly submitted that once notices/letters were sent to the petitioner workman to join duty, if the petitioner workman still does not report for duty, there was no need for holding any further enquiry and that the principles of natural justice cannot be applied in a straight jacket formula, without understanding their scope or real meaning.
12. I have heard the counsel for both the parties and have carefully perused the documents placed on record including the impugned award and the lower court records. A perusal of the impugned award shows that the findings therein are based primarily on the fact that despite the letter dated 12.2.1992 having been sent by the respondent management requiring the petitioner/workman to join service, and to return the equipments in his custody if he was not interested in joining the services, the petitioner workman did not report for duties, which implies that he had voluntarily abandoned his job and was not interested in working with the respondent management. The very factum of the respondent management having sent the aforesaid letter to the petitioner workman is being disputed by him. The said document was placed on record by the respondent management as Ex. MW1/5. The said letter as well as the fact that the petitioner workman had failed to report for duty w.e.f. 25.1.1992, also find mention in the letter dated 7.4.1992 addressed on behalf of the respondent management to the petitioner workman which had been duly received by him, and to which a reply was also sent by the petitioner workman. Also, it is borne out from a reading of the written statement filed by the respondent management before the ALC/Conciliation Officer that the petitioner workman was called upon by the respondent/management to join duty without prejudice to his rights. As against this, the argument of the petitioner workman that it was only a statement made to the Court and not a proposal to him, is untenable for the simple reason that the written statement was nothing but a reply to the claim petition filed by the petitioner workman and any proposal made therein was made to the petitioner workman himself and it was then for him to accept or reject the same. The other averment of the petitioner workman that the written statement filed before the ALC or the reply of the respondent management to the demand notice, cannot be treated as calling upon him to report for duty because they held out a threat that he would be arrested for having stolen expensive equipment, is devoid of merits. The petitioner workman could have joined back on duty and proved his bonafides, which he did not. In this factual background of the case, despite repeated notices/letters by the respondent management to the petitioner workman asking him to join duty, if he chose not to do so, then there appears to be no error in the findings of the Labour Court that he had abandoned the job of his own accord.
13. The next issue that needs consideration by this Court is as to whether the respondent management was under an obligation to hold an enquiry before terminating the services of the petitioner workman, even if he had abandoned duty of his own will and volition. In this regard the Labour Court was right in holding that since the petitioner workman had abandoned the job of his own accord by remaining absent from duties w.e.f. 25.1.1992 without intimation and failed to return on duty despite the notices/letters sent to him by the respondent management, thus there was a presumption of abandonment of job by the petitioner workman and there was no need for issuance of a charge sheet for conducting a domestic enquiry. Support was rightly drawn from the judgment of in the case of Syndicate Bank (supra), wherein the Supreme Court while dealing with the case of an employee who had remained on unauthorized leave and failed to respond to the notice, observed as under:
15. Now what are the requirements of principles of natural justice, which are required to be observed? These are: (1) a workman should know the nature of the complaint or accusation; (2) an opportunity to state his case; and (3) the management should act in good faith which means that the action of the management should be fair, reasonable and just....
16. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are: (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, e.g., a party must have due notice when the tribunal will proceed; the tribunal should not act on irrelevant evidence or shut out relevant evidence; if the tribunal consists of several members they all must sit together at all times; the tribunal should act independently and should not be biased against any party; its action should be based on good faith and order (sic) and should act in a just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above.
17. The Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened hire. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.
(emphasis added)
14. The law as laid down in Syndicate bank (supra) has been followed by the Supreme Court in the case of Viveka Nand Sethi v. Chairman, J and K Bank Ltd. and Ors. reported in (2005)5 SCC 337 and by this Court in the case of Jai Kishan Dass and Bros. v. The Presiding Officer and Ors. being W.P(C) No. 335/1996 decided on 1.9.2006. In light of the aforesaid judgments, the plea raised on behalf of petitioner workman that an enquiry should have been conducted before terminating his services, does not hold water.
15. There is also no denial to the fact that the petitioner workman was appointed on probation for a period of one year and the probation period had not expired at the time when he started absenting himself. It is settled law that if the order of termination is a termination simplicitor and not punitive in nature, then no opportunity of hearing needs to be given to a probationer. Thus, even if it is held to be case of termination of service and not of abandonment, still there appears to be no illegality in the action of the respondent/management.
16. As such all the contentions raised by the petitioner by way of the present petition, if entertained would amount to nothing but reappreciation of evidence and interference with findings of facts arrived at by the Labour Court, which is beyond the scope of judicial review. Law is well settled in this respect that it is not appropriate for this Court, while exercising jurisdiction under Article 226 of the Constitution, to reappreciate evidence or to interfere with the findings of facts as arrived at by the Labour Court. The jurisdiction exercised by the writ court under Article 226 is supervisory and not appellate in nature. Reappraisal of evidence without sufficient reason in law, to arrive at a finding of fact contrary to those arrived at by the Subordinate Court, is not the intent of exercising the powers of judicial review. Reliance in this regard can be placed on the following judgments of the Supreme Court:
i. Harbans Lal v. Jagmohan Saran ii. B.C. Chaturvedi v. Union of India iii. Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union AIR 2000 SC 1508 iv. Municipal Corporation of Delhi v. Asha Ram and Anr. (supra)
17. In view of the aforesaid facts and circumstances and the position of law as discussed above, this Court finds no illegality, infirmity or perversity in the impugned award so as to warrant any interference therewith. The writ petition is therefore dismissed as being devoid of merits. No order as to costs.