Delhi District Court
Industrial Dispute Between : vs Shri Satpal on 25 November, 2019
1
IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER
LABOUR COURT, ROUSE AVENUE COURTS , NEW DELHI
DID No:842/2016 ( Old DID No:149 of 2014)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Rajender Narain S/o Late Sh. Khushi Ram
R/o 164/224, Double Story, New Seelampur Market,
Delhi110053 .....Workman
VERSUS
Shri Satpal
Prop./Director of
M/s Shyam Paper Mart,
3770, Chawri Bazari, Delhi .....Management
Date of Institution : 19082014
Date of Arguments : 02112019
Date of Award : 25112019
AWARD
1. The Workman has filed the present direct Industrial dispute
against the managementherein. The case of the workman as stated in
the claim is that he has joined the management on the post of Clerical
Job on 06071985 at a monthly salary of Rs.250/ pm. He served the
management with sincerity and full dedication. His salary was
increased up to Rs.5800/ pm in the year 2012. It is stated that
workmanherein fell ill in October 2012 to September 2013 and he
informed the management about his illness and he was assured by the
management that after the recovery of the workmanherein from illness
he will be joined duty with the management, however when the
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
2
workman went to the office of the management it is stated by the
management that the workman has been replaced and his services has
been terminated by the management. It is stated that the workman
herein was terminated without any information/notice and without
paying him his full and final settlement regarding his salary from
October, 2012 to September, 2013. The workman stated to have sent a
legal notice dated 07022014 to the management for full and final
payment of Rs.1,50,000/ for the period October 2012 to September,
2013 and other benefits and the said notice was duly served upon the
management through speed post but all in vain. Hence, the present
statement of claim.
2. In its written statement it is stated by the management that
they have not terminated the services of the workman but the workman
himself left the management without any prior permission. It is stated
that the workman is still on the roll of the management. It is submitted
that after receiving the salary of September, 2012 the workman started
unauthorizedly absenting himself from the duty w.e.f. October, 2012
and when the management called him on telephone he denied to resume
his duty. It is stated that the workman joined the management on April
2012 and left the management after making clear his dues till
September 2012. It is denied that workman was continuously working
with the management since 06071985. The management has denied
the all the allegations of the workman as alleged in the statement of
claim. It is stated that claim of the workman is not maintainable and
workman is not entitled to any relief from this court. Management
prayed for dismissal of the claim of the workman.
3. Workman filed replication to the written statement of the
management and in his replication the workman has controverted the
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
3
averments of the management made in written statement and reiterated
his stand made in his instant application.
4. From the pleadings of the parties the following issues were
framed on 17042015:
(1) Whether the services of the claimant have been terminated
illegally and/or unjustifiably by the management ? OPW
(2) Whether the workman himself abandoned the job in October
2012 ? OPM
(3) Relief
5. Workman has examined himself as WW1 and filed his evidence
by way of affidavit which is exhibited as Ex.WW1/A. In his evidenciary
affidavit the workman has reiterated the contents of the statement of
claim. Ex.WW1/1 is the copy of Voter I'card of workman(OSR). Ex.
WW1/2 is the copy of letter pad of management dated 29041995
(OSR). Ex. WW1/3 is copy of legal notice dated 07022014. Ex.
WW1/4 is postal receipt and Ex. WW1/5 is the copy of failure report
dated 11082014 (OSR). The workman has been cross examined by the
AR of the management. During his cross examination workman/WW1
has stated as under:
"It is correct that I have full knowledge of contents of my
statement of claim and my evidence by way of affidavit. I do not know
English language. My education qualification is 10th pass. It is correct
that Mr. Satpal was the sole proprietor of the management. Apart from
the documents filed on record I have no other documents to show that I
was working with the management since 1985. Vol. ( since the
management never issued any documents from the date of my
appointment in 1985). It is correct that I have demanded from the
management regarding my appointment letter after my appointment. It
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
4
is correct that I have not filed any document regarding the demand of
my appointment letter. There are many employees with the management
when I was working with the management. Again said there were 10
employees working with the management. I know the names of few
employees who were working with the management. Their names are
Tribhuvan Prasad, Ram Asrey, Janardhan Prasad, Sanjeev Kumar. It is
wrong to suggest that these are false names. It is correct that I have
prayed in this case salary from October 2012 to September 2013. It is
correct that management paid all the dues till September 2012. It is
correct that I have not worked with the management from October 2012
to September 2013. It is correct that I have obtained a sanction leave
from Satpal proprietor of Management. It is correct that I have not filed
any documents regarding the obtained of sanction leave from the
management. It is wrong to suggest that I have not fell ill in October
2012 to September 2013. It is also correct that I have not filed any
document regarding my illness from the aboves aid period. It is wrong
to suggest that the management has any due of from the above said
period. I have gone to resume my duty in September 2013. It is wrong
to suggest that I have not gone to resume my duties in September 2013.
I do not remember the exact date for approaching the management to
resume my duty. It is correct that I am still unemployed. I do not
remember the date of my termination. It is wrong to suggest that the
management has not terminated my service. It is correct that I have not
filed any complaint of my termination in labour department. It is correct
that I have not filed any case before the Conciliation Officer regarding
my dues and termination. It is correct that I do not want to resume my
duty as I am not well. It is correct that I have not filed my medical
papers of my present illness. It is wrong to suggest that the document
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
5
Ex WW1/2 is false and fabricated document. It is correct that Ex
WW1/2 was not issued to me by the proprietor. It is wrong to suggest
that I have filed false statement claim and I am deposing falsely."
6. Management has examined its one of the partner Sh. Virender
Pasricha as MW1, who has filed his evidence by way of affidavit
Ex.MW1/A and in his evidenciary affidavit the MW1 has reiterated the
contents of the written statement. The MW1 was cross examined by the
AR of the workman. In his cross examination MW1 has stated that:
"I have signed my affidavit in evidence in Court. I know the
contents of my affidavit, Ex. MW1/A. I know the claimant as he was
my employee since 20072008. The Management was paying about Rs.
6100/, per month, as salary to the workman till September 2012. I
have only one part time Accountant. It is correct that claimant issued a
Legal Demand Notice dated 07.02.2014. Vol. In September 2012, the
workman had cleared all his dues and left the employment of the
Management. It is correct that workman had demanded Rs. 15.0 lac as
full and final payment in his Legal Demand Notice. It is wrong to
suggest that the Claimant was employed by my father on 06.07.1985 as
a Clerk. Ex. WW1/2 does not bear to my Management. Vol. The same
is false and fabricated document. The stamp, signatures as well as letter
head being Ex. WW1/2 does not belong to the Management. After
September, 2012, claimant at no point of time had approached the
Management. It is wrong to suggest that the Claimant has gone to the
Management for reinstating his services but the Management told the
claimant that they have terminated his services. Vol. Even today, with
immediate effect, I am ready to take the workman on duty. At this stage,
workman submitted that at present he cannot join back his services on
account of his illness (i.e. diabetes and knee pain). It is wrong to
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
6
suggest that I have terminated the services of the workman illegally. It
is further wrong to suggest that Management has any dues of the
workman. It is wrong to suggest that I am deposing falsely."
7. I have heard the authorized representative of the workman as
well as management and my findings on the issues are as under:
8. ISSUE No.2:
"Whether the workman himself abandoned the job in
October 2012? OPM"
It will be appropriate first to dispose of this issue No.2 which
relates to the issue of abandonment of the workman and the onus to
prove being on the management.
The crux of the case of the workman is that he was not paid
salary for the period Oct. 2012 to Sept. 2013 when he was on leave.
When the returned to join for work he was told that he was replaced and
thus his services stood terminated. However, in the crossexamination
the workman has admitted the following facts:
During his cross examination workman/WW1 has stated as
under:
".........It is correct that I have prayed in this case salary from
October 2012 to September 2013. It is correct that management paid
all the dues till September 2012. It is correct that I have not worked
with the management from October 2012 to September 2013. It is
correct that I have obtained a sanction leave from Satpal proprietor of
Management. It is correct that I have not filed any documents
regarding the obtained of sanction leave from the management. It is
wrong to suggest that I have not fell ill in October 2012 to September
2013. It is also correct that I have not filed any document regarding
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
7
my illness from the above said period. It is wrong to suggest that the
management has any due of from the above said period. I have gone
to resume my duty in September 2013. It is wrong to suggest that I
have not gone to resume my duties in September 2013. I do not
remember the exact date for approaching the management to resume
my duty. It is correct that I am still unemployed. I do not remember
the date of my termination. It is wrong to suggest that the
management has not terminated my service. It is correct that I have
not filed any complaint of my termination in labour department. It is
correct that I have not filed any case before the Conciliation Officer
regarding my dues and termination. It is correct that I do not want to
resume my duty as I am not well. It is correct that I have not filed my
medical papers of my present illness. It is wrong to suggest that the
document Ex WW1/2 is false and fabricated document. It is correct
that Ex WW1/2 was not issued to me by the proprietor. It is wrong to
suggest that I have filed false statement claim and I am deposing
falsely."
On the other hand the crux of the case of the management is that
the workmanherein had not joined the service of the management
which tantamount to abandonment of job by the workman. The
management had not terminated the service of the workman and his
name has yet not been removed from the roll of the management which
still wants the workman to join his duty. The relevant portion of the
crossexamination of the managementwitness MW1 is thus :
In his cross examination MW1 has stated that:
"I have signed my affidavit in evidence in Court. I know the
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
8
contents of my affidavit, Ex. MW1/A. I know the claimant as he was
my employee since 20072008. The Management was paying about
Rs. 6100/, per month, as salary to the workman till September 2012.
I have only one part time Accountant. It is correct that claimant
issued a Legal Demand Notice dated 07.02.2014. Vol. In September
2012, the workman had cleared all his dues and left the employment
of the Management. It is correct that workman had demanded Rs.1.5
lac as full and final payment in his Legal Demand Notice. It is wrong
to suggest that the Claimant was employed by my father on
06.07.1985 as a Clerk. Ex. WW1/2 does not bear to my
Management. Vol. The same is false and fabricated document. The
stamp, signatures as well as letter head being Ex. WW1/2 does not
belong to the Management. After September, 2012, claimant at no
point of time had approached the Management. It is wrong to suggest
that the Claimant has gone to the Management for reinstating his
services but the Management told the claimant that they have
terminated his services. Vol. Even today, with immediate effect, I am
ready to take the workman on duty. At this stage, workman submitted
that at present he cannot join back his services on account of his
illness (i.e. diabetes and knee pain). It is wrong to suggest that
I have terminated the services of the workman illegally. It is further
wrong to suggest that Management has any dues of the workman. It
is wrong to suggest that I am deposing falsely."
The crossexamination of the workman himself admitted that he
did not want to join the services of the management. The management
has offered the workman to join the duty during the crossexamination
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
9
of the MW1. The relevant portion of the respective crossexaminations
are reproduced here at the cost of repetition so as to draw a justified
inference :
Workmanherein :
It is correct that I have prayed in this case salary from October 2012
to September 2013. It is correct that management paid all the dues till
September 2012. It is correct that I have not worked with the
management from October 2012 to September 2013...
... It is also correct that I have not filed any document regarding my
illness from the above said period...
... It is correct that I have not filed any complaint of my termination
in labour department. It is correct that I have not filed any case
before the Conciliation Officer regarding my dues and termination. It
is correct that I do not want to resume my duty as I am not well. It is
correct that I have not filed my medical papers of my present illness.
Managementherein: Even today, with immediate effect, I am ready
to take the workman on duty. At this stage, workman submitted that at
present he cannot join back his services on account of his illness (i.e.
diabetes and knee pain).
The perusal of the evidence shows that the workman's is only
seeking salary for the period Oct. 2012 to Sept. 2013 as full and final
settlement and nothing else. This much is clear from the workman's
own admission that he had filed the case for the salary of the said period
and does not wish to join the service of the managementherein.
In Buckingham and Carnatic Company Limited v. Venkatayya,
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
10
(1963) II LLU 663, the Hon'ble Supreme Court observed:
"It is true that under common law an inference that an
employee has abandoned or relinquished service is not easily drawn
unless from the length of absence and from other surrounding
circumstances an inference to that effect can be legitimately drawn
and it can be assumed that the employee intended to abandon service.
Abandonment or relinquishment of service is always a question of
intention, and, normally such an intention cannot be attributed to an
employee without adequate evidence in the terms and conditions of
service and they are included in Certified Standing Orders, the
doctrines of common law or considerations of equity would not be
relevant. It is then a matter of constituting the relevant terms itself.
Hence under the first part of the relevant Standing Order an
employee remaining absent for eight consecutive days without leave
shall be deemed to have terminated his contract of service and thus
relinquished or abandoned his employment. The fact that such
absence is also made a misconduct under the other Standing Order
will not affect this position as it is not incumbent on the management
to take recourse to the Standing Order providing for disciplinary
proceedings for such absence on the part of any employee."
In "The Workmen Of The Bangalore vs The Management Of
The Bangalore {reported in AIR 1962 SC 1363, 1962 (4) FLR 298}
"retrenchment" was held to be inapplicable in the cases where the
workman was physically unfit to resume his duties. It was held:
"If it is not capable of being continued, that is to say, in the
same manner in which it had been going on before, and it is,
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
11
therefore, brought to an end, that is not a termination of the service.
It is the contract of service which is terminated and that contract
requires certain physical fitness in the workmen. Where therefore a
workman is discharged on the ground of illhealth, it is because he
was unfit to discharge the service which he had undertaken to render
and therefore it had really come to an end itself. That this is the idea
involved in the definition of the word 'retrenchment' is also supported
by Section 25G of the Act which provides that where any workmen
are retrenched, and the employer proposes to take in his employ any
person he shall give an opportunity to the retrenched workmen to
offer themselves for reemployment and the latter shall have
preference over other persons in the matter of employment.
Obviously, it was not contemplated that one whose services had been
terminated on grounds of physical unfitness or illhealth would be
offered reemployment; it was because his physical condition
prevented him from carrying out the work which he had been given
that he had to leave and no question of asking such a person to take
up the work again arises. If he could not do the work, he could not be
offered employment again. It would follow that such a person cannot
be said to have been retrenched within the meaning of the Act as
amended by the Ordinance."
The above said judgment of "Buckingham and Carnatic
Company" renders a guidance to the Labour Courts on drawing a
justified inference on the intention of abandonment on part of the
workman. The judgment in the "Workmen of Bangalore" holds
"retrenchment" inapplicable in the cases where the workman was
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
12
physically unfit to resume his duties.
In P. Krishnan vs. 1. Management, Jonas Woodhead and sons
(India) Ltd., Madras 2. Presiding Officer, Second Addl. Labour Court,
Madras, 2003 LLR 852 it was held that termination of a workman for
his habitual absence and not joining his duties despite letters and re
minders to this effect will be legal and justified even when no enquiry
has been held by the management. It was further held that it is not in
cumbent on employer to wait indefinitely for the workman who fails to
join his duties or sending application for leave despite repeated letters
and the employer can act within his rights in removing the workman
from the rolls.
In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University,
Jodhpur and others, 2001 LLR 1071 it was held that being a case of
abandonment of service, no notice/enquiry is required.
In Diamond Toys Co.(Pvt.) Ltd. vs. Toofani Ram & Anr. WP(C)
No.4501/04, wherein it was held that:
"...Leaving the services of an employer by the workman is a
valid mode of his 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
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal
Prop./Director of M/s Shyam Paper Mart,
13
one which an employer considers as the misconduct. An enquiry is 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.
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 presumption by the employer that the employee is not inter ested in the job when he/she is absent from work for a long duration without the authorization of the employer, has been considered as rea sonable. Based on a recent judgment of the Punjab and Haryana High Court in "Tejinder Kaur v. State of Punjab and another" {CWP No.8120 of 2016 decided on 4 October, 2016} it was held :
"In the present case also, the petitioner remained absent from duty for years together on the basis of unauthorized leave which was never sanctioned. Even she did not bother about the public notice published in the newspaper. Not only unauthorized absence from duty was there but the petitioner also left the country without seeking any permission and that too at the cost of interest of the children. The DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal Prop./Director of M/s Shyam Paper Mart, 14 unauthorized absence from duty for such a long period amounts to a presumption that the petitioner was not interested in pursuing her job and has abandoned it and as such, the action of the respondent is justified. In case of long unauthorized absence from duty, a reasonable presumption can be that the incumbent is not interested job and for passing order, no notice or inquiry is required. The petitioner has also challenged the impugned orders after a long delay, which has not been explained."
In the present it is the workman's own admission that he had not served the managementherein from Oct. 2012 till Sept. 2013 on account of his ill health and is still not physically fit to join the management on being physically unfit. The workman has not given a specific date of 'termination' from his job. The workman has not filed any medical document and any fitness medical certificate to substantiate his version. Therefore it cannot be said that the workman had validly sought medical leave. It is also not established by the workman that his absence due to medical reasons was allowed "with pay". Even if the workman had obtained permission from the management on his medical leave it was the discretion of the management whether to allow the leave "leave with pay" or "leave without pay". However, the length of absence of the workmanherein is long (1 year) without any proof of valid permission. The crossexamination of the workman reveals that he had no prior intention to rejoin. Taking in view the judgment of "Workmen of Bangalore" this also cannot be said to be "retrenchment" on part of the management. Thus the issue no:2 is decided in favour of the management and against the workman.
9. ISSUE NO:1 DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal Prop./Director of M/s Shyam Paper Mart, 15 In view of my finding on the issue no:2, wherein consequently the Issue No.1 is also decided in favour of the management and against the workman and I hold that the services of the claimant has not been terminated illegally by the management.
10. RELIEF In view of my findings on the issue No:2 and 1, I hold that claimant is not entitled to any relief from this court. The claim is hereby dismissed. File be consigned to record room.
Announced in the open court.
Dated: 25112019
( VEENA RANI )
Digitally
signed by
VEENA Presiding Officer Labour Court,
VEENA RANI
RANI Date:
2019.11.28
Rouse Avenue Courts,New Delhi
11:02:16
+0530 Judge Code : DL0271
DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal Prop./Director of M/s Shyam Paper Mart, 16 IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT, ROUSE AVENUE COURTS , NEW DELHI DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal Prop./Director of M/s Shyam Paper Mart, 25112019 Present : Sh. Aijaz Ahmed, AR of the workman.
Sh. Puneet Saini, AR of management.
Vide my separate detailed order the present case claim is dismissed. File be consigned to record room.
Announced in the open court.
Dated:25112019 ( VEENA RANI ) Presiding Officer Labour Court, Rouse Avenue Courts,New Delhi Judge Code : DL0271 DID No:842/2016 ( Old DID No:149 of 2014), Sh. Rajender Narain Vs. Shri Satpal Prop./Director of M/s Shyam Paper Mart,