Himachal Pradesh High Court
Continental Construction Ltd. vs Presiding Officer And Anr. on 19 March, 2004
Equivalent citations: [2004(102)FLR1190], (2004)IIILLJ117HP
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. This writ petition under Article 226/227 of the Constitution of India is directed against the award dated April 1, 1997 passed by Presiding Judge, H.P. Labour Court, Shimla in Reference No. 129/93.
2. The facts of the case are that Des Raj Workman-respondent No. 2 herein has raised industrial disputes alleging therein that he was working with the petitioner-company as a Helper w.e.f. January 1, 1988. He proceeded on two days leave i.e. May 29 and 30, 1992. On return after availing the leave, he was told by the Management that his services were no longer required w.e.f. June 6, 1992. A copy of the statement of the claim is placed on record as Annexure P-2. The State Government in terms of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) made following reference to the Labour Court:
"Whether the termination of Shri Des Raj Kamgar son of Shri Hari Chand by Manager Continental Construction Ltd., village and P.O. Khairai, District Chamba, without serving any show cause notice or salary in lieu of notice or retrenchment benefits, is legal? If not, what relief Shri Des Raj Kamgar is entitled to?"
3. The petitioner-Company submitted detailed reply to the statement of claim. The stand of the management was that the Workman was appointed on daily wages w.e.f. December 1, 1990. It was denied that workman had applied for leave. According to the management, the Workman did not join his duties on June 6, 1992 and remained absent without any intimation to the Management. He kept on absenting himself till July 3, 1992 on which date a telegram was sent, a copy whereof is placed on record as Annexure P-4 directing the Workman to report for his duties immediately. The workman did not respond to the said telegram and a letter dated July 16, 1992, a copy whereof is placed on record as Annexure P-5 was addressed to him requesting him to resume his duties on or before July 23, 1992. The workman was also called upon to submit his written explanation as to why the disciplinary action should not be taken against him. It was further brought to the notice of the workman that in case he failed to resume his duties within the stipulated period, it would be presumed that he was no longer interested in the employment and had left the services of the Company of his own accord. The said letter was received back by the sender undelivered with the remarks of the postal authority that "the addressee was not found present in the house and was out of station". The petitioner-Company left with no other remedy except to terminate the services of the Workman vide letter dated July 24, 1992, (copy Annexure P-8) is placed on record. The workman was also advised to collect his final payment. Letter (Annexure P-8) was again returned by the postal authority with the remarks that "the addressee was not found available in his house and said to have gone out of station". Through letter dated August 6, 1992, a cheque for Rs. 281.95 paise towards full and final payments of the wages of the workman were sent to him (copy marked Annexure P-11). However, again the letter was returned by the postal authority with the same remarks. The Management stated that on perusal of the abovesaid communications it is clear that the workman had abandoned his job without any reasonable cause and the work of Chamera Project on which the workman was employed was completed on February 22, 1994 and thereafter all the workers employed on casual daily wage basis were declared surplus and retrenched according to law.
4. The Conciliation Officer, Chamba had given two opportunities to the workman to be present before him for conciliation proceedings but the workman failed to participate in the conciliation proceedings as such the proceedings were closed by order dated August 27, 1992 (copy marked Annexure P-14). The matter came up before the Presiding Officer of the Labour Court. The Labour Court recorded the evidence of the parties and answered the reference in favour of respondent No. 2. Workman directing the petitioner-Company to reinstate the workman with payment of full wages and resultant benefits along with interest at the rate of 12% per annum. Hence, the petitioner-Company has challenged the award of the Labour Court by way of this writ petition.
5. In reply to the writ petition, the Workman has stated that he has been kept out of job by the petitioner-Company from May 31, 1996 onwards and after the award came to be passed in his favour by the Labour Court, the petitioner-Company has not reinstated him nor back wages were paid to him. He stated that the award of the Labour Court is just and proper and no interference is called for in these proceedings. The workman also stated that he never absented himself from the duties as alleged by the petitioner-company and the story pleaded by it that he left the job on his own accord was fabricated. He pleaded that he attended the conciliation proceedings through his authorised representative and also personally. The allegations to the contrary levelled in the writ petition by the petitioner-Company were wrong and emphatically denied. According to the workman he was residing in the Project Colony at Kheri during his employment and the communications said to have been sent to him by the petitioner-Company were intentionally addressed to his native place where he could not be found available. He further stated that it was unbelievable that he had abandoned the job on his own in these days of soaring prices and unemployment.
6. In the rejoinder, the petitioner company has denied the averments made by the workman in his reply to the writ petition. Further it is stated that since the workman was absent unauthorisedly and did not respond to the various communications sent to him, the petitioner-company had no option but to dispense with his services after following the legal procedure. The material placed on record of the Labour Court was sufficient to prove that the communications were sent to the workman at his permanent address available with the petitioner-company.
7. In reply to the application filed by the Workman under Section 17-B of the "the Act" for payment of full wages pending the disposal of the writ petition, the petitioner-Company has stated that in-compliance to the award of the Labour Court, the workman had been re-engaged as Helper at Manari Bhali Unit of the Company vide order dated August 14, 1999 and he was transferred to the transit office of the company at Rishikesh. The workman left Rishikesh on August 18, 1999 without seeking prior permission of the competent authority and never reported for duties thereafter. On August 14, 1999 he was paid an advance of Rs. 1,000 against the wages for the month of August, 1999. The workman left the company's office at Rishikesh and never reported for duty though a request followed, by a reminder had already been sent to him. Copies thereof are placed on record as Annexures A-1 and A-2 asking him to resume his duties. The petitioner-Company has also stated that it was ready and willing to allow the workman to join his duties, but the workman was reluctant not to join his duties at the new place of posting as there was no other project except the execution of the work of Nathpa Jhakari Project in joint venture with Foundation Company of Canada where the workman could not have been assigned the work of Helper.
8. I have heard learned counsel for the parties and examined the finding and reasoning recorded by the learned Labour Court in the award impugned in this writ petition.
9. The only issue remains to be determined is whether the services of the workman were orally terminated or he had abandoned the services voluntarily?
10. The specific stand of the petitioner-employer before the Labour Court was that the Workman was appointed on daily wage w.e.f. December 1, 1990 and not w.e.f. January 1, 1988 as alleged by the workman in his claim petition. He was absconding from June 6, 1992 without any intimation to the company. He was informed telegraphically vide telegram dated July 3, 1992 to join his duties immediately, but the workman had not responded to the request of the employer. Thereafter letter No. 67080/2668 dated July 16, 1992 was addressed to the workman to resume his duties on or before July 23, 1992 failing which strict action would be taken against him and his name shall be struck off from the rolls of the Company. The said letter was received undelivered by the employer with the remarks that the addressee was not at his residence. The workman did not resume his duties and remained absent unauthorisedly. As a result thereof his name was struck off w.e.f. July 24, 1992 from the rolls of the Company. The workman was again informed in regard to the action taken by the employer but the letter addressed to him was again received back undelivered with the same remarks that the addressee was not found available at his native place and had gone out of village. The petitioner-Company has placed on record a copy of telegram dated July 3, 1992 (Annexure P-4) directing the workman to report for duty immediately as he was found absent w.e.f. June 6, 1992. On perusal of the copy of Registered A.D. cover letter dated July 16, 1992, it is clean that the workman was called upon to resume his duty immediately on or before July 23, 1992 along with written explanation as to why disciplinary action should not be taken against him for remaining absent from duty w. .f. June 6, 1992. In terms of the said letter, the workman was asked to resume duty within the stipulated period and in default it would be presumed that he was no more interested in the employment of the company and left the service on his own accord losing a lien on the job and his name would be struck off from the rolls of the company. The report of the postal authority is also placed on record as Annexure P-6. The said report reveals that the addressee was not found available at the given address and had gone out of station and resultantly the registered A.D. letter was returned undelivered to the employer. Another registered letter dated July 24, 1992 (copy Annexure P-8) was addressed to the workman informing him that his name was struck off from the rolls of the company w.e.f. July 24, 1992 as he had failed to resume his duty on or before July 23, 1992. The workman was also advised to collect full and final dues from the Accounts Department of the company after furnishing his clearance from all the Sections concerned. The said letter was also returned undelivered by the postal authority vide Annexure P-9 with the report that the workman was not found available at the given address and had gone out of station. Thereafter on August 6, 1992 a registered A.D. letter (copy Annexure P-11) was sent to the petitioner along with Cheque No. 547110 dated July 30, 1992 for Rs. 281.95 towards full and final payment of his dues. Again the postal authority vide report marked Annexure P-12 sent registered A.D. letter back to the employer undelivered with the same remarks. Copy of conciliation proceedings marked Annexure P-14/A dated August 27, 1992 reveals that first meeting by the conciliation officer was held on August 24, 1992. The workman was informed in advance about the dates of the said proceedings, but on both Occasions he absented himself without any prior intimation. The Conciliation Officer observed that continued absence of the workman not participating in the conciliation proceedings would show that he did not want to argue the industrial dispute raised by him. The Conciliation Officer had given opportunities to the workman to submit his reply within seven days but it appears that no reply was received by the Conciliation Officer and consequently the conciliation proceedings were considered as cancelled and concluded.
11. During the pendency of the writ petition, the workman was directed by this Court on March 2, 2000 to report for duty within six weeks' time but as per the letter written by Col. J.P. Singh (Retd.), Vice President (Admn.) to Mr. K.D. Shreedhar, advocate of the petitioner-company a copy whereof is shown to the Court and placed on record, it is clear that the workman had failed to comply with the order of the Court and he did not join the duty offered to him by the Company. Clause 16 of the standing order framed under Section 3(1) of the Industrial Employment (Standing Orders) Act, 1946 (Copy Annexure P-16) provides mat if the workman absents himself for ten consecutive days or overstays leave beyond the period of leave originally granted or subsequently extended for ten consecutive days, will be deemed to have left the services of the company without notice.
12. In the facts and circumstances of the case, it stands proved on record that the workman had abandoned the job of the petitioner-company voluntarily and the conclusion arrived at by the Labour Court that the services of the workman were orally terminated by the company in violation of the provisions of Section 25-F of the Act is not sustainable as the workman has failed to discharge the burden of proof that his services were orally terminated by the employer. It is settled proposition of law that burden of proof always lies upon the party who makes certain allegations and seeks relief on it. The Court has to address itself whether the party, which has made the allegations, has discharged the burden of proving the allegations. Moreso, the party must succeed on the strength of its own case rather than on the weakness of the case of the other side. The workman has failed to prove his case of oral termination by the employer and on the contrary the petitioner-Company has proved on record that on the basis of the oral and documentary evidence it was the workman who had abandoned his job voluntarily without sanctioned leave and he had failed to report for duty despite the message sent to him by the employer.
13. In Jeewan Lal Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567: 1961-I-LLJ-517, the Apex Court held as under at p. 520 of LLJ:
"......... if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cast a break in continuity of service ......... We would like to make it clear that ........ 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."
Similarly, in Shahoodul Haque v. Registrar, Co-operative Societies, Bihar, AIR 1974 SC 1896 : 1975 (3) SCC 108, the Apex Court has observed as under:
"The undenied and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient ground for his absence, is so glaring that giving him further opportunity to disprove what he practically admits, would serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him...... On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of service was necessary or duty given on the assumption that he was not punished. We do not think that there is any question involved in this case which could justify an interference by us ......."
14. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another, AIR 2000 SC 2198 : 2000 (5) SCC 65 : 2000-I-LLJ-1630, the brief facts of the case were as under:
"In the instant case the delinquent bank employee absented himself from work for a period of 90 or more consecutive days. The Bank sent show cause notice to delinquent for his continued absence and to report back for work before mentioned date failing which he would be deemed to have been voluntarily retired from the services of the bank for his continued absence. The said notice was sent by registered post but it was returned with the report of the postal authority that he refused to receive the same. The Bank by virtue of Clause 16 of the Bipartite Settlement treated the delinquent as having voluntarily abandoned his services. This order of the Bank was similarly sent to delinquent under registered cover but was returned with the endorsement of the postal authority "not found during delivery time". Industrial dispute was raised by the union which led the reference by Government to the Tribunal for adjudication. The Tribunal was of the view that since the Bank did not examine the postman that delinquent in fact refused to receive the notice, it could not be said that there was service of notice to him. Therefore, the Bank could not in the circumstances invoke the provisions of Clause 16 of the Bipartite Settlement and on that score alone reinstatement of delinquent was ordered. The High Court upheld the order of Tribunal."
The Supreme Court has proceeded to hold under:
"The notice was sent on the correct address of delinquent and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against delinquent. Yet the Tribunal held that no notice was given to him as postman was not produced by the Bank. This would be rather an incongruous finding by the Tribunal. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that delinquent 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 delinquent 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 in this case. Assuming that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to delinquent 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. Thus, undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank was concerned. There was no occasion for the Tribunal to direct that delinquent be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the award."
15. As the workman himself had voluntarily abandoned the service in the present case, the findings recorded by the Labour Court that his services were orally terminated in violation of Section 25-F of the Act are unwarranted and unsustainable. The petitioner-Company has given more than sufficient opportunities to the workman to resume his duty after he was found absent without sanctioned leave. The workman defaulted and offered no explanation of his absence from duty and did not report for duty within the stipulated period of the notice as required in clause 16 of the Standing Order.
16. I, therefore, allow the writ petition, set aside the award dated April 1, 1997 of the Presiding Judge, Labour Court (Annexure P-15) passed in Reference No. 129/1993. The parties are left to bear their own costs.