Delhi District Court
The vs The on 11 January, 2007
-1-
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 119/06
BETWEEN
The Workman
Sh. Manoranjan Arora S/o Sh. K.K. Arora,
C/o Hindustan Engineering & General Mazdoor Union,
C-49, New Moti Nagar,
New Delhi-110015.
AND
The Management
IPCA Laboratories Ltd.,
81, Furniture Block, W.H.S., Kirti Nagar,
New Delhi-110015.
AWARD
1. The National Capital Territory of Delhi, through its Secretary (Labour)
vide reference no. F.24(3325)/2002-Lab./2735-39 dt. 01.05.2003 referred the
dispute for adjudication between the Management IPCA Laboratories Ltd.
and its workman Sh. Manoranjan Arora S/o Sh. K.K. Arora in the following
terms of reference:-
"Whether services of Sh. Manoranjan Arora S/o Sh.
K.K. Arora have been transferred legally and/or
justifiably or his services have been terminated
illegally and/or unjustifiably by the management and if
so, to what relief is he entitled and what directions are
necessary in this respect?"
2. The workman has filed statement of claim stating therein that he has
been in the employment of management for the last 11 years as Professional
-2-
Service Representative and his last drawn salary was Rs.6180/- per month. It
is stated that the workman was working sincerely and diligently to the
satisfaction of management and never gave any chance of complaint to the
management. It is stated that the management was paying Rs.70/- per day
as conveyance allowances to the workman and the workman wanted
conveyance allowances @ Rs.2/- per K.M. w.e.f. January 2002 and the
management had also not given the privilege leave to the workman for the
year 2002 and on demand of the same the management got annoyed from
the workman. It is stated that the management deposited the amount of
Rs.1500/- as sales incentive from the workman w.e.f. May 2001, although the
workman has not proof of the same, later management increased the said
amount upto Rs.7500/- per month w.e.f. March 2002 and when workman
protested then management transferred him from Preetampura, Jahangirpuri
(North Delhi) to Badarpur, Faridabad and other parts of South Delhi and due
to the said transfer workman suffered Rs.200/- per day and this act of the
management is against the law and principles of natural justice. It is stated
that the workman was on medical leave w.e.f. 15.3.2002 to 16.3.2002 and he
was fit for duty on 17.3.2002, but 17.3.2002 was holiday and on 18.3.2002
workman did not go for duty due to some urgent work and the workman sent
a telegram to the management and when on 19.3.2002 workman went to join
the duty with fitness certificate but management refused to assign him duty
and the management sent telegram dt. 16.3.2002 to the workman which was
received by workman on 17.3.2002 thereby informing the workman for
-3-
stopping of field work and this act of the management is against the law and
principles of natural justice. It is stated that the services of workman were
terminated on 19.3.2002 without any notice. It is stated that workman lodged
a complaint against the illegal termination of his services to the Labour
Authorities and despite efforts of the Labour Inspector the workman was not
reinstated. It is stated that the workman served a legal demand notice dt.
23.03.2002 through Union to the management, but the management did not
send any reply to the same and workman was not taken on duty. It is stated
that the workman presented his claim before the Conciliation Officer, but due
to non-cooperative attitude of the management conciliation was not arrived
and the case was referred to the court. It is prayed that an award be passed
thereby reinstating the workman in service with full back wages and
continuity of service.
3. Notice of statement of claim was issued to the management and
management has filed W.S. and has contested the same. In the W.S.
management has taken the objection that this court has no jurisdiction to
entertain the dispute as one of the conditions contained in the letter of
appointment of the workman was that all disputes arising out of this
appointment letter will be subject to jurisdiction of the Bombay Court. It is
stated that the appropriate Govt. has referred the dispute in a mechanical
manner and without application of mind. It is stated that it was specifically
pointed out to the Conciliation Officer that the management had not
terminated the service of the workman, but he was absent from duty after the
-4-
reallocation of the territory of the workman from North Delhi to South Delhi
due to business requirements. It is stated that the period of service and the
last drawn salary of the workman is a matter of record and needs no reply. It
is stated that the appointment of workman was subject to the terms and
conditions mentioned in the letter of appointment dt. 11.6.1991 and one of
the term and condition of the appointment was that the job of the workman
was transferable at any other place in the country. It is denied that the
management did not give the benefit of privilege leave to the workman for the
year 2002 and on demand of the same the management got annoyed, as
alleged. It is also denied that there was any occasion for the workman to
protest or that the management transferred the workman on account of
alleged protest, from Pitampura, Jahangir Puri (North Delhi) to Badarpur,
Faridabad and other parts of the South Delhi. It is stated that the
management in the best interest of the work has every right to transfer the
workman from one territory of the work to the other territory. It is stated that
on 13.3.2002 the management allocated new territory to the workman from
North Delhi to South Delhi and he was handed over list of the markets of
South Delhi and the list of Doctors to be met by him w.e.f. 15.3.2002, but the
workman did not accept the changed territory and wanted to know the
reasons for the change in the territory in writing and the workman was
informed that as the sales from his existing territory was not coming upto the
management's expected level, the change in the territory had been made to
give him opportunity to explore the potential available in the new territory. It is
-5-
stated that the reallocation of the territory or the change in the territory in the
business interest of the management is the discretion of the management. It
is stated that the workman was advised and requested to start his filed work
in the new assigned territory, but the workman paid no heed to this and
refused to accept the reallocation order and insisted upon giving the reason
of change in the territory in writing. As the workman refused to work in the
new territory he was advised telegraphically on 16.3.2002 to stop his field
work in the earlier territory and the workman thereafter, absented. But, he
sent a telegram for availing casual leave for 18.3.2002. It is denied that the
workman came to join the duty on 19.3.2002 with fitness certificate or
otherwise. It is denied that the services of workman were terminated illegally
or otherwise by the management. It is also denied that the management had
not replied the letter dt. 23.3.2002 of the workman. It is stated that the
management replied the same vide letter dt. 6.4.2002. It is stated that the
workman has been himself absenting from duty. It is denied that there is any
violation of principle law or natural justice, as alleged. It is stated that the
workman is not entitled to any relief.
4. The workman has filed rejoinder to the WS of management. In the
rejoinder workman has reiterated the contents of statement of claim and has
controverted the allegations of management as stated in the WS.
5. From the pleadings of parties following issues were framed by my ld.
Predecessor on 13.01.2005:
1. Whether this court has no jurisdiction to entertain the present
-6-
reference as pleaded in P.O. No. 1 of the written statement? If so, its
effect? OPM.
2. As per terms of reference.
6. To prove his case workman examined himself as WW1 and WE was
closed on 01.04.2006.
7. In support of its case managements examined Sh. Ramesh Kumar
Sachdeva, Zonal Manager (Institutional Sale) as MW1 and ME was closed on
09.12.2006.
8. I have heard Authorised Representatives for both the parties and
carefully perused record. My findings on specific issues are as under:
ISSUE NO. 1
9. In para 1 of PO of WS management has stated that this court has no
jurisdiction to entertain any dispute between the management and the
workman in as much as one of the conditions containing in the letter of
appointment of the workman was that all disputes arising out of this
appointment letter will be subject to jurisdiction of Bombay Court.
10. The workman appeared in witness box as WW1 and WW1/workman
admitted in the cross-examination that Ex. WW1/M1 is the copy of
appointment letter issued to him. Condition no.10 of the appointment letter
Ex. WW1/M1 reads as under:
10. All disputes arising out of this appointment letter will
be subject to jurisdiction of Bombay Court.
11. In para 5 of the statement of claim it is stated the workman was
-7-
transferred by management from Pitampura, Jahangirpuri (North Delhi) to
Badarpur, Faridabad and other part of South Delhi. In para 5 of reply on
merits in the WS management has denied that the management transferred
the workman on account of alleged protest from Pitampura, Jahangirpuri
(North Delhi) to Badarpur, Faridabad and other parts of the South Delhi. In
para 6 of reply on merits in the WS management has stated that on
13.03.2002 the management allocated new territory to workman from North
Delhi to South Delhi and the workman was advised to visit the new territory
w.e.f. 15.03.2002. Hence it is admitted case of the parties that the workman
was posted in Delhi and he was working in Delhi for the management and
w.e.f. 15.03.2002 also the workman was allocated new territory from North
Delhi to South Delhi.
12. In Lohia Starlinger Limited & Anr. vs. Government of NCT of Delhi
& Ors.- 2006-LLR-905 it is held that:
37. A workman cannot create an artificial cause of
action to raise a dispute at a place wherefrom he/she
has been transferred by incidently questioning the
order of transfer while challenging the order of
termination of service. In the instant case upon
issuance of the order of transfer and its receipt by the
respondent no. 3, the Delhi office of the petitioner no
longer had any control over respondent no. 3 whose services stood transferred to Kanpur and it was the Kanpur office which had control over all services of the respondent no.3. The respondent no. 3 has chosen not to question the order of transfer in any industrial adjudication or judicial proceedings and has questioned only the order of termination of her service. The situs of employment of respondent no. 3 being Kanpur, such a dispute could have been raised only at Kanpur.
-8-
38. So far as civil litigation and writ jurisdiction is concerned it has been held that the same can be instituted in any court where even a part of cause of action has arisen. Cause of action is not defined in the Code of Civil Procedure but has been judicially interpreted to mean every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to the judgment of the court. It is that bundle of fact which, taken together with the applicable law, entities the plaintiff to relief against the defendants.
13. Hence in view of decision in Lohia Starlinger Limited & Anr. vs. Government of NCT of Delhi & Ors. (Supra) the courts in Delhi will have the jurisdiction to entertain the dispute between the parties. This issue stands answered accordingly.
ISSUE NO. 2
14. In para 5 of statement of claim workman has stated that he was transferred by management from Pitampura, Jahangirpuri (North Delhi) to Badarpur, Faridabad and other parts of the South Delhi. In para 6 of the statement of claim workman has stated that he was on medical leave on 15.03.2002 and 16.03.2002 and he was fit for duty on 17.03.2002 but 17.03.2002 was holiday and on 18.03.2002 workman did not go for duty due to some urgent work and he sent telegram to management and when on 19.03.2002 workman went to report for duty management refused him duty and management had sent a telegram dt. 16.03.2002 to workman which was received by workman on 17.03.2002 informing him for stopping of field work and this act of the management is against the law and principle of natural justice. In the WS management has stated that the management in the best -9- interest of the work has every right to transfer the workman from one territory of work to the other territory and on 13.03.2002 the management allocated new territory to the workman from North Delhi to South Delhi and he was handed over list of the markets of the South Delhi and the list of doctors to be met and visited by him w.e.f. 15.03.2002 but the workman did not accept the changed territory and wanted to know the reasons for change in the territory in writing. It is further stated in the WS that workman was advised and requested to start field work in the newly assigned territory but the workman refused to accept the allocation letter and insisted upon to give reasons for change of territory in writing and as the workman has refused to work in the new territory he was advised telegraphically on 16.03.2002 to stop his field work in the earlier territory and thereafter the workman sent a telegram for availing casual leave for 18.03.2002. It is denied in the WS that the workman came to join duty on 19.03.2002 with fitness certificate or otherwise. The management has denied in the WS that the management has terminated the services of workman.
15. The contract of service comes to an end where the workman abandons his job but 'abandonment of service' has not been defined in the Act. Etymologically, the work ' abandonment' has been explained to mean ' to leave completely and finally' ; forsake utterly; to relinquish, to renounce, to give up all concern in something; relinquishment of an interest or claim; abandonment when used in relation to an office means 'voluntary relinquishment'. In order to constitute an 'abandonment', therefore, there -10- must be a total or complete giving up of the duties, so as to indicate an intention not to resume the same. Abandonment must be total and under circumstances which clearly indicate an absolute relinquishment. A failure to perform the duties pertaining to an office, must be with an actual or imputed, intention on the part of the officer to abandon and relinquish the office'.
16. In Buckingham & Carnatic Co. Ltd. v. Venkatayya (1963) 2 LLJ 638 Hon'ble Supreme Court held that abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
17. In GT Lad v. Chemicals and Fibres of India 1979 Lab IC 290, Hon'ble Supreme Court held that:
However, the "intention may be inferred from the acts and conduct of the party'. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case. It was further held that a temporary absence from duty cannot be treated as abandonment, but it must be a permanent break intended by the workman.
18. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, Jodhpur and others, 2001 LLR 1071 Hon'ble Court held:
There is distinction between retrenchment and
abandonment from service. The termination
contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression retrenchment and in case the workman does not report for duty, it would amount to -11- abandonment of services by the employee of his free will and the employer would have done nothing, whatsoever, to put an end to his employment and, therefore, the case does not fall within the meaning of "retrenchment".
19. To prove his case workman examined himself as WW1 and workman adduced evidence by way of affidavit Ex. WW1/A. In the cross-examination workman/WW1 admitted that appointment letter Ex. WW1/M1 was issued to him. Condition no. 5 of Ex. WW1/M1 reads as under:
5. That your job is transferable and in the interest of the Company's business you can be transferred to any other place in the country. In case of transfer no extra allowance or money will be paid to you.
20. In para 5 of the statement of claim workman has stated that management deposited the amount of Rs. 1500/- as sales incentives from the workman w.e.f. May 2001, although workman has no proof of the same and later management increased the said amount to Rs. 7500/- per month w.e.f. March 2002 and when workman protested, management transferred him from Pitampura, Jahangirpuri (North Delhi) to Badarpur, Faridabad and other parts of South Delhi and due to the said transfer the workman suffered loss of Rs. 200/- per day due to distance and other problems and this act of the management is against the law and principle of natural justice. Workman has also relied on demand notice dt. 23.03.2002 Ex. WW1/1 which was sent by workman to the management and in Ex. WW1/1 also the workman has stated that transfer of workman from Pitampura, Jahangirpuri (North Delhi) to Badarpur, Faridabad and other parts of South Delhi was a act of vengeance. -12- The workman has filed on record a copy of claim which was filed by him before the Conciliation Officer and the same is Ex. WW1/3 and in para 3 of the Ex. WW1/3 workman has stated that his transfer from North Delhi to South Delhi was illegal and he strongly protested his transfer as the said transfer would have wasted four hours per day in commuting and he would have suffered a loss of Rs. 200/- per day. The workman has also filed on record a copy of rejoinder dt. 04.05.2002 which was filed by workman before the Conciliation Officer and the same is Ex. WW1/4 and in para 2 of the Ex. WW1/4 also the workman has stated that his transfer from North Delhi to South Delhi was illegal and he strongly protested the same as the same would have resulted in loss of four hours per day on commuting and he would have suffered a loss of Rs. 200/- per day in commuting. Aforesaid documents proved that the workman was protesting his transfer from North Delhi to South Delhi. Workman/WW1 admitted in cross-examination that letter dt. 13.03.2002 Ex. WW1/M2 by which territory was reallocated from North Delhi to South Delhi was received by him. However, workman/WW1 voluntarily stated in cross-examination that Ex. WW1/M2 was received by him on 14.03.2002. Workman/WW1 further stated in cross-examination that it is correct that his transfer from North territory to South territory of Delhi in terms of Ex. WW1/M2 was not malafide and it was in furtherance of business interest of management. On one hand in his claim before the Conciliation Officer Ex. WW1/3 and rejoinder filed before the Conciliation Officer Ex. WW1/4 the workman has stated that he strongly protested his transfer from -13- North Delhi to South Delhi but in the cross-examination workman/WW1 stated that his transfer from North territory to South territory of Delhi was not malafide and it was in furtherance of business interest of management.
21. In D. B. Mathur vs. Cement Corpn. of India & Ors.- 2006 LLR 240 it was held that when an employee, challenging his transfer has failed to establish mala fide whereas the management has denied the allegations, such a transfer will not suffer from personal malice or mala fide. It was further held that transfer of an employee, holding transferable post, is an incident of service and the courts will interfere in the matter of transfer only when such an order is mala fide or suffers from arbitrariness.
22. The management has taken the plea that the management is well within its right to transfer the workman in terms of condition 5 of letter of appointment Ex. WW1/M1 and moreover the allocation of territory to workman from North Delhi to South Delhi was effected for the business interest of the management and moreover this is not a transfer as the workman would have continued to be in Delhi only and only his area of work was changed from North Delhi to South Delhi. Although, workman has stated in claim filed before the Conciliation Officer Ex. WW1/3 and rejoinder filed before the Conciliation Officer Ex. WW1/4 that his transfer was malafide and it would have taken him four hours for commuting to the newly allocated territory and he would have suffered a loss of Rs. 200/- per day in working in new territory but in the cross-examination workman/WW1 admitted that his transfer from North territory to South territory of Delhi was not malafide and it -14- was in furtherance of business interest of the management. The workman has failed to prove that his transfer from North territory of Delhi to South territory of Delhi was illegal or malafide.
23. The plea of the workman is that on 15.03.2002 and 16.03.2002 he was on medical leave and 17.03.2002 was holiday and on 18.03.2002 he had taken casual leave and when on 19.03.2002 he went to the office he was denied duty by the management and the workman has also pleaded that management had sent him a telegram dt. 16.03.2002 which was received by him on 17.03.2002 informing him of stopping field work. The management has taken the plea that on 13.03.2002 the management allocated new territory to workman from North Delhi to South Delhi and the workman was handed over a list of markets of the South Delhi and the list of doctors to be met/visited by him w.e.f. 15.03.2002 but the workman did not accept the same and thereafter the same was sent to him by courier which was received by him on 14.03.2002 and the said letter is Ex. WW1/M2 but the workman did not work in the newly assigned territory and the workman sent telegram for availing casual leave for 18.03.2002 and thereafter he did not report for duty and absented from duty.
24. Workman/WW1 admitted in the cross-examination that letter dt. 13.03.2002 Ex. WW1/M2 by which new territory was assigned to him was received by him. However, workman/WW1 voluntarily stated in cross- examination that the same was received by him by courier on 14.03.2002. The plea of the workman is that on 15.03.2002 and 16.03.2002 he was on -15- medical leave and 17.03.2002 was Sunday and on 18.03.2002 he was on casual leave and on 19.03.2002 he went to the office of the manage but he was told that his services have been terminated. Workman/WW1 has placed on record a medical certificate Ex. WW1/7 from one Dr. Praveen Jain to the effect that the workman was advised bed rest for 15.03.2002 and 16.03.2002 and the workman has also placed on record a fitness certificate which is Ex. WW1/8 as per which he was fit to resume duty on 17.03.2002. MW1 stated in cross-examination that management has received telegram from workman on or about 15.03.2002 when he had informed that he is on leave. MW1 further stated in cross-examination that he cannot say if the workman has sent another telegram for extending the leave. MW1 stated in cross-examination that he does not remember if the workman had sent the telegram in respect of the medical leave. The workman has not placed any proof of sending telegram to management thereby informing about his availing medical leave on 15.03.2002 and 16.03.2002. In para 5 of affidavit Ex. MW1/A it is stated that the workman, however, sent telegram for casual leave for 18.03.2002 and thereafter he did not report for duty and absented from work.
25. Workman/WW1 stated in cross-examination that on 19.03.2002 in the office he was waiting to meet Sh. Sachdeva and he sent a message to Sh. Sachdeva through peon that he wanted to meet him and after sometime peon informed him that his services have been terminated. Workman/WW1 admitted in the cross-examination that in his claim before the Conciliation Officer or in the statement of claim filed before this court or in his affidavit Ex. -16- WW1/A he has not mentioned that on 19.03.2002 he was informed by Sh. Sachdeva through peon that his services have been terminated. Workman/WW1 further stated in cross-examination that he did not make any complaint in writing to any higher authority in Delhi or Bombay office of the management regarding information which was given to him by the peon on 19.03.2002. Workman/WW1 admitted in cross-examination that Sh. S. L. Dhawan, Vice President of the management used to sit in Delhi Office. Workman further stated in cross-examination that he does not know if Sh. S. L. Dhawan was the overall in-charge of Delhi Office. The workman has not explained that as to why he has not mentioned in the claim which was filed before the Conciliation Officer or in the statement of claim which was filed before this court or in his affidavit Ex. WW1/A that he was informed by Sh. Sachdeva through his peon that his services have been terminated. The workman has also not explained that if he was informed by the peon on 19.03.2002 that his services have been terminated then why he did not make any representation to the higher authorities of the management about the information so received by him.
26. The plea of the management is that the services of workman were not terminated by the management and the workman is absenting from duty of his own. In para 8 of the affidavit Ex. MW1/A the management has stated that the management had filed reply to the statement of claim of the workman before the Conciliation Officer and copy of the same is Ex. MW1/1. In Ex. MW1/1 which is dt. 06.04.2002 the management has mentioned that the -17- workman was issued letter dt. 13.03.2002 reallocating his territory and he was called upon to resume his duty in South Delhi and the said letter was refused by him, however, he did not resume his duty and made a false complaint to Labour Authorities alleging that his services have been terminated w.e.f. 19.03.2002. It is further stated in Ex. MW1/1 by the management that the management has not terminated the services of workman till date and the workman be directed to resume duty at South Delhi immediately. It is to be noted that in the cross-examination of MW1 a suggestion was given by workman to the effect that copy of Ex. MW1/1 was not supplied to the workman in the conciliation proceedings. It is to be noted that workman has himself placed on record a copy of the claim which was filed by him before the Conciliation Officer and the same is Ex. WW1/3 and the workman has also filed a copy of the rejoinder which was filed by him to the reply filed by management before the Conciliation Officer and the copy of the said rejoinder is Ex. WW1/4. However, the workman has intentionally omitted to file the copy of the reply which was filed by the management to his claim before the Conciliation Officer. It is to be noted that in the cross- examination of MW1 only a suggestion has been given to the effect that copy of reply Ex. MW1/1 was not supplied to the workman. However, the workman has not placed on record the copy of the reply which was allegedly filed by the management before the Conciliation Officer and to which rejoinder Ex. WW1/4 was filed by the workman. In para 3 of the rejoinder which was filed before the Conciliation Officer Ex. WW1/4 the workman has stated that vide -18- telegram dt. 16.03.2002 he was informed by the management to stop field work and workman has denied that he was not reporting for duty himself. Rejoinder Ex. WW1/4 shows that the workman was aware that the management has taken the plea that the services have not been terminated by the management and management has taken the plea that the workman is voluntarily absenting from the duty of the management and the management had requested the Conciliation Officer to direct the workman to report for duty. In para 12 of the statement of claim workman has stated that conciliation proceedings failed due to non-cooperative attitude of the management. However, the workman has not stated that the management had not offered him reinstatement before the Conciliation Officer or that the management had made any offer of reinstatement and in pursuance of the same he had gone to join the duty but management refused to assign him duty. In the cross-examination of MW1 also a question was put by the workman to the effect that the workman is ready to join the management if the management agrees to pay the wages for the intervening period of his disengagement from the management.
27. In Sonal Garments vs. Trimbak Shankar Karve-2003-LLR-5 it was held that:
Whenever the employer offers to reinstate the workman at any stage of the dispute or proceedings and if the workman does not accept the offer even without prejudice to his rights and contentions, he will not be entitled to claim for reinstatement and he will be not entitled to claim any back wages from the date -19- of such offer, conditional or unconditional.
28. In case titled as Competition Printing Press vs. Jaiprakash Singh and Another 2001-II-LLJ 1341, management attended the office of Government Labour Officer and submitted that workman himself was remaining absent and that he was never terminated from employment and he could report for work with continuity of service and the workman refused to get reinstated with continuity of service but insisted for back wages. It was held that no genuine and bonafide workman who was aggrieved by an illegal order of termination would deny the offer of reinstatement and would not readily give up the valuable job for the sake of few days back wages. Alternatively the workman could have accepted reinstatement before the Government Labour Officer and even before the Conciliation Officer praying to refer the dispute restricting to the entitlement of the back wages as he was already reinstated during the proceedings before the Government Labour Officer or the Conciliation Officer as the case may be. It was further held that in such case the workman is not entitled to reinstatement and back wages.
29. In Tirloki Nath (Shri) v. Shri Dharam Paul Arora & Anr. 2006 LLR 1043 our own Hon'ble High Court held that if a workman fails to resume duties, even when the offer is made before the Conciliation Officer as well as the Industrial Tribunal, it will be irresistibly presumed that he is no longer interested in the job and has abandoned the job of his own accord. It was further held that merely that the workman has not resumed the duty because he was not entitled to have salary, would not justify his refusal since after -20- joining he could have lodged his protest.
30. The management has pleaded that the management had filed reply to the claim of the workman before the Conciliation Officer and the same is Ex. MW1/1 and by the said reply the Conciliation Officer was informed that the management has not terminated the services of workman and the Conciliation Officer was requested to direct the workman to join the duty. The workman has filed rejoinder which was filed by him to the reply of the management before the Conciliation Officer and the same is Ex. WW1/4. The workman has failed to rebut the claim of management that Ex. MW1/1 was filed by the management before the Conciliation Officer and on offer of reinstatement was made by the management before the Conciliation Officer. In the cross-examination of MW1 also workman has put a question to MW1 to the effect that the workman his willing to join the management if the management agrees to pay wages for the intervening period of his disengagement from the management. The workman did not offer himself for employment in pursuance of offer of management which was made to him by the management by way of reply filed to the claim of the workman before the Conciliation Officer. If the workman was aggrieved that he was entitled to back wages and he was really interested in the job of the management, then, he could have accepted the offer of the management made before the Conciliation Officer reserving his right of the back wages as held in Sonal Garments v. Trimbak Shankar Karve (Supra) and Competition Printing Press v. Jaiprakash Singh and Another (Supra). But the workman did not -21- adopt this course and rather proceeded to litigate. These circumstances and conduct of the workman lends support to the version of management that the workman had abandoned the employment of management and he never came back to report for duty even after offer of the management for duty made before the Conciliation Officer. This leads to the conclusion that the workman had abandoned the employment of management.
31. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, Jodhpur and others (Supra) it was held that being a case of abandonment of service, no notice/enquiry is required.
32. In case Laxmi Kant v. Presiding Officer Industrial Tribunal-cum- Labour Court, Gurgaon and another (1999) 1 LLJ 224, it was held:
The Labour Court has passed a categorical finding that the management had not passed any order of termination; if there is no order of termination, passed by the employer, it is not understood as to how and why it is required to hold an enquiry. The petitioner had himself abandoned the job. He is wanting to take advantage of his own wrong. There is neither equity nor law in his favour.
33. In Tej Pal v. Gopal Narain & Sons & Anr. 132 (2006) DLT 311 it was held:
A perusal of Section 2(oo) of the Act shows retrenchment means the termination of services of a workman by management. Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman -22- were terminated. It was not the case of the workman before the Labour Court that after receiving letter of the management asking him to join duties, he had gone to join duties and was not allowed to join duties. The contention of the workman that employer was supposed to initiate an inquiry into his absence before terminating his services, is baseless because in this case employer had not terminated services. An employer who writes a letter to the workman to join duties since he was absent, cannot be said to have terminated th services of the petitioner. Only if the petitioner had not been allowed to join duties on his reporting, it could have been said that his services were terminated.
34. In view of aforesaid discussions it is held that the workman absented from duty of the management w.e.f. 19.03.2002 without any information or prior sanction of the leave. As the workman himself had absented from the duties of the management, hence there is no question of termination of the services of the workman illegally and/or unjustifiably by the management. Consequently, the workman is not entitled to any relief. Reference stands answered accordingly. Copies of this award be sent to appropriate Govt. for publication as per law. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 11.01.2007 (HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI -23- ID 119/06 11.01.2007 Present: Workman in person.
Sh. S. K. Chachra, Advocate for management.
Award dictated and announced separately. Copies of the award be sent to appropriate Government for publication as per law.
File be consigned to Record Room.
POLC/11.01.2007