Delhi District Court
27. In Kendriya Vidhyalaya Sanghathan ... vs . S. C. Sharma on 24 April, 2007
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI
DID NO. 815/2006
BETWEEN
The workman
Sh. Veer Singh S/o Late Sh. Gokul Singh
C/o Delhi General Mazdoor Front
B. K. 1/33B, Janta Flat, Shalimar Bagh,
Delhi- 110088.
AND
The Management of
M/s Laxmi Milk Testing Machinery Company
A-90, Goup Wazirpur Industrial Area,
Delhi- 110052.
AWARD
1.The workman has filed statement of claim under Section 10(4A) of the I. D. Act on 13.01.2005 stating therein that he has been in the employment of management since the year 1996 as Machine Man and his last drawn salary was Rs.3030/- per month and he was working sincerely and diligently to the satisfaction of management and never gave any chance of complaint to the management. It is stated that management has employed 20 workmen. The management was not maintaining any attendance register and the management was not providing the facilities of PF, ESI, leave book and bonus. The management has also not issued letter of appointment to the workman. In order to fight for his demands, the workman joined Delhi General Mazdoor Front Union on which management got annoyed with the workman. The workman has also completed training course at Industrial Training :2: Institute, Bulandshaher and passed prescribed training in the trade of fitter in July 1987. The workman was working as Machine Man with the management but he was not paid wages accordingly to his work and on demand of the same the management got annoyed. On demand of the legal facilities by the workman, the management got annoyed and terminated the services of workman on 29.09.2004 without issuing any notice or charge sheet. The workman made complaint dt. 01.10.2004 through union to the Dy. Labour Commissioner and the workman sent notice of demand dt. 05.10.2004 to the management but the workman was not reinstated. It is stated that workman is unemployed since the date of termination of his services. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
2. The notice of statement of claim was issued to the management and the management has filed WS to the statement of claim and has contested the same. In the WS it is stated that the management has not terminated the services of workman the workman has abandoned the job of his own by not reporting for duty w.e.f. 26.09.2004. The management sent various letters on different dates to the workman thereby directing him to join services but the workman did not turn up for service. The management even published in the daily newspaper about the absence of the workman and directed him to report for duty but the workman did report for duty. When the workman did not report for duty, the management sent dues of the workman in compliance of provisions of Section 25F of the I. D. Act. However the workman after :3: receiving the said dues sent the same back to the management. During conciliation proceedings also the management requested the Conciliation Officer to direct that workman to report for duty but the workman refused to join duty and demanded heavy amount to settle the dispute. The present claim has been filed by the workman in order to blackmail the management and to extort money from the management. It is stated that the workman was appointed on 14.05.1998 as Assistant Turner and he was being paid in accordance with law. It is denied that the management was not providing the legal facilities. It is also denied that on demand of the legal facilities management started threatening workman of termination. It is stated that management sent reply to the demand notice of the workman and directed the workman to report for duty but the workman did not join the duty. It is stated that workman is not entitled to any relief.
3. Workman has filed rejoinder to the WS of management. In the rejoinder the workman has reiterated the contents of statement of claim and controverted the allegations of management as stated in the WS.
4. From the pleadings of parties following issues were framed by my ld. predecessor on 18.11.2005:
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1. Whether the workman himself abandoned his job by not reporting for duty w.e.f. 26.09.2004 and did not report for duty despite all sincere efforts made by the management in this behalf and thereafter the management in compliance of Section 25-F of the Industrial Disputes Act, 1947 sent his dues as per law on his last known address but the workman refused the same? If so, its effect? OPM.
2. If issue no.1 is decided in favour of the workman, whether his services were terminated illegally and unjustifiably by the management? If so, its effect? OPW.
3. Relief.
5. To prove his case workman examined himself as WW1 and WE was closed on 12.05.2006.
6. In support of its case management examined Sh. Baldev Singh, Partner as MW1 and ME was closed on 12.01.2007.
7. I have heard AR for workman and carefully perused record. My findings on specific issues are as under:
ISSUE NO.1
8. In the statement of claim, workman has stated that he has been employed with the management since 1996 and his services were terminated by management on 29.09.2004. In the written statement, management has stated that the workman was appointed on 14.05.1998 and the workman abandoned the job of his own accord by not reporting for duty w.e.f. 26.09.2004. The plea of the management is that the management sent :5: various letters on different dates to the workman thereby directing him to join duty but the workman did not turn up and thereafter the management sent dues of the workman but the workman refused to accept the dues.
9. 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 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'.
10. 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.
11. 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 :6: 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.
12. 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 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".
13. To prove that his services were illegally terminated by the management, workman examined himself as WW1 and adduced evidence by way of affidavit Ex. WW1/A. In his affidavit Ex. WW1/A workman has stated that his services were terminated by management illegally on 29.09.2004 and he made complaint dt. 01.10.2004 to Deputy Labour Commissioner through his union and thereafter he sent notice of demand dt. 05.10.2004 to the management and thereafter he regularly approached the management for reinstatement but the management did not reinstate him. The workman has filed on record copy of the demand notice dt. 05.10.2004 Ex. WW1/1, postal :7: receipt Ex. WW1/2, AD card Ex. WW1/3, copy of letter sent to Assistant Labour Commissioner dt. 01.10.2004 Ex. WW1/4. In the written statement the management has stated that the management sent letters to the workman on different dates thereby directing him to join duty but after receipt of the said letters workman did not join duty. Workman/WW1 admitted in the cross-examination that he had received letters dt. 04.10.2004, 11.10.2004, 16.10.2004, 20.10.2004, 29.10.2004 and 22.11.2004 of the management and the workman/WW1 further voluntarily stated in the cross-examination that on receipt of the said letters he went to the management for job but he was not reinstated. The workman has filed on record letter dt. 05.10.2004 Ex. WW1/1, letter dt. 14.10.2004 Ex. WW1/5, letter dt. 25.10.2004 Ex. WW1/7, letter dt. 17.11.2004 Ex. WW1/9, letter dt. 29.11.2004 Ex. WW1/11 sent by Delhi General Mazdoor Front (Regd.) to management and letter dt. 29.11.2004 Ex. WW1/13 sent by the workman to the management. The plea of the management is that the management had sent letters dt. 04.10.2004, 11.10.2004, 16.10.2004, 20.10.2004, 29.10.2004 and 22.11.2004 to the workman but despite receipt the said letters workman has not reported for duty. The workman has pleaded that on receipt of the aforesaid letters of the management he had reported for duty he he was not reinstated by the management. The workman has relied on letter dt. 05.10.2004 Ex. WW1/1, letter dt. 14.10.2004 Ex. WW1/5, letter dt. 25.10.2004 Ex. WW1/7, letter dt. 17.11.2004 Ex. WW1/9 and letter dt. 29.11.2004 Ex. WW1/13 which were written to the management. In the cross-examination of workman/WW1 :8: management has not given any suggestion to the effect that aforesaid letters dt. 05.10.2004 Ex. WW1/1, letter dt. 14.10.2004 Ex. WW1/5, letter dt. 25.10.2004 Ex. WW1/7, letter dt. 17.11.2004 Ex. WW1/9 and letter dt. 29.11.2004 Ex. WW1/13 were not received by the management. Hence the workman has proved that the letters Ex. WW1/1, Ex. WW1/5, Ex. WW1/7. Ex. WW1/9 and Ex. WW1/13 were sent to the management. In letter dt. 05.10.2004 Ex. WW1/1 the workman has stated that his services have been terminated by management on 29.09.2004 without issuing any notice or charge sheet. In letter dt. 14.10.2004 Ex. WW1/5 workman has stated that he has received letter dt. 11.10.2004 of the management in which management has stated that he has left the services since 26.09.2004 and in pursuance of the said letter of the management dt. 11.10.2004 he had gone for duty on 13.10.2004 but the management did not allow his to join work. In letter dt. 25.10.2004 Ex. WW1/7 workman has stated that he has received letter dt. 21.10.2004 of the management and in pursuance of the said letter he had gone to join duty on 23.10.2004 but the management did not reinstate him. In letter dt. 17.11.2004 Ex.WW1/9 workman has stated that he has received letter dt. 29.10.2004 of the management and on receipt of the said letter he went for duty on 02.11.2004 but he was not reinstated. In the letter dt. 29.11.2004 Ex. WW1/13 workman has stated that on receipt of letter dt. 22.11.2004 of the management he went for duty on 25.11.2004 and 26.11.2004 but he was not reinstated. MW1 stated in cross-examination that the management had received some letters from the workman and he further :9: voluntarily stated that management has also sent letters to the workman. The management has not placed on record the letters on which the management is relying by which it had directed the workman to resume the duty. However, the workman has placed on record Ex. WW1/1, Ex. WW1/5, Ex. WW1/7, Ex. WW1/9, Ex. WW1/13 in order to prove that on receipt of letters from the management he was reporting for duty but the management was not reinstating him. In the written statement, management has stated that publication was also issued in the newspaper thereby directing the workman to report for duty but the management has not placed any such newspaper publication on record. In the cross-examination of workman/WW1, management has given a suggestion to the effect that management sent full and final dues of the workman at his residence but he did not accept the same. Workman/WW1 stated in the cross-examination that he has not received the full and final dues which were sent by management as he wanted the job and not the full and final settlement. In the letters Ex. WW1/5, Ex. WW1/7, Ex. WW1/9 and Ex. WW1/13 workman has stated that in pursuance of the letters of the management had had gone for duty on 13.10.2004, 23.10.2004, 02.11.2004, 25.11.2004 and 26.11.2004 but he was not reinstated. In the cross-examination of workman/WW1 no suggestion has been given by management to the effect that the workman did not report for duty on 13.10.2004, 23.10.2004, 02.11.2004, 25.11.2004 and 26.11.2004 as mentioned in Ex. WW1/5, Ex. WW1/7, Ex. WW1/9 and Ex. WW1/13. The aforesaid conduct of the workman proves that the intention of workman was :10: not to break relationship with the management and he was interested in the job of the management and was approaching the management for job.
14. In the cross-examination of workman/WW1 the management gave suggestion to the effect that management sent full and final dues to the workman but the workman did not accept the same and the workman/WW1 stated in the cross-examination that he did not accept the same as he wanted the job and not full and final settlement. This conduct of the workman also shows that the workman was not interested in breaking the relationship with the management and he was interested in the job of management hence he has not received the full and final settlement dues.
15. In para 1 of preliminary objection in the written statement the management has stated that during conciliation proceedings also management requested Conciliation Officer to direct the workman to report for duty but the workman refused to join and demanded heavy amount to settle the dispute. Although, in the written statement management has taken the plea that in the conciliation proceedings management had offered duty to the workman but the workman did not report for duty, but the management has not given any suggestion to this effect to workman/WW1 in his cross- examination that any offer of reinstatement was made by management to workman before Conciliation Officer. The management has also not summoned record of the conciliation proceedings in order to prove that the management had offered employment to the workman before the Conciliation Officer also.
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16. The plea of the workman is that his services were terminated by management on 29.09.2004 but the management has taken the plea that the workman has been absenting from duty w.e.f. 26.09.2004. The management has not produced any attendance record in order to prove that the workman had not attended the management till 29.09.2004 as pleaded by workman and the workman has been absenting since 26.09.2004.
17. The plea of the workman is that after his termination of services on 29.09.2004 he sent letter dt. 05.10.2004 Ex. WW1/1 to management and complaint dt. 01.10.2004 Ex. WW1/4 to the Assistant Labour Commissioner. MW1 admitted in the cross-examination that the management had received notice dt. 05.10.2004 from the workman. However, MW1 further voluntarily stated in cross-examination that it was replied by the management. However, the management has not filed the reply on record which was written by the management to the notice dt. 05.10.2004 of the workman. It is to be noted that the workman made his first complaint regarding termination of his services on 01.10.2004 vide Ex. WW1/4 but management has not placed any document on record to prove that prior to 01.10.2004 it has sent any letter to the workman thereby stating that he is unauthorizedly absenting from duty w.e.f. 26.09.2004 and whereby the workman was directed to report for duty.
18. If the intention of the management was not to terminate the services of workman then it was open for the management to have offered employment to the workman before this court at the time of filing written statement or at any subsequent stage but the management has not adopted this course. In :12: the cross-examination of workman/WW1, the workman was confronted with photographs Ex. WW1/M1 to Ex. WW1/M39 wherein the workman has been shown as selling vegetable on Rehari(Handcart) which shows that workman had not got any alternative employment which would have created any reason for him to abandon the service of management. Aforesaid discussions and circumstances prove that the workman was agitating his claim of reinstatement of service hence in the circumstances it cannot be said that there was intention on the part of the workman to abandon or to voluntarily relinquish the services of the management. In the circumstances the plea of the management that management had written letters to the workman thereby directing him to join duty has to be seen in the light of the replies sent by workman to the letters of management wherein the workman has clearly stated that in response to the letters of management he was reporting for duty but the management was not assigning him duty. At the expense of repetition it can be said that although the management has contended that the management had offered employment to workman before the Conciliation Officer but the management has not proved that any such offer was made to the workman before the Conciliation Officer but still if the management was interested in retaining the services of workman then the management could have offered employment to the workman before this court also but the management has not adopted this course. Aforesaid discussions clearly show that the management denied services to the workman since 29.09.2004 and the workman has not abandoned the job w.e.f. 26.09.2004. This issue :13: stands answered accordingly.
ISSUE NO. 2
19. In findings on issue no.1 above it has been held that the management had denied services to the workman since 29.09.2004 and the management has made a lame excuse that it is the workman who is himself absenting from duty w.e.f. 26.09.2004.
20. In D.K. Yadav v. JMA Industries Ltd. 1993-II-LLJ-696 it was held that "the law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both."
21. In The Executive Engineer, Irrigation Division-I, Jaipur & Anr. v. Nar Narain 1994-LLR-538 it was held that "the employee is always in a disadvantageous position vis-a-vis the employer. He is not in a position to :14: dictate the terms of employment qua the employer. It is the sweet-will of the employee to engage a workman on the terms and conditions which suit the employer. However, when a workman leaves service after working for a year or more, the natural conduct which is expected of the employer is to make an enquiry as to why the workman is not coming on duty."
22. In Kendriya Vidhyalya Sanghathan and Anr. v. S.C. Sharma 2005- LLR-275, it was held by Hon'ble Supreme Court that for terminating services without holding the enquiry a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings and since such a finding had not been recorded by the authorities, the termination was illegal.
23. Section 2(oo) of the Industrial Disputes Act 1947 reads as under:
"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.
24. Section 25F of the Industrial Disputes Act 1947 provides that:
Conditions precedent to retrenchment of workmen. - No workman :15: employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
25. The management examined Sh. Baldev Singh Chadha as MW1 who stated in cross-examination that the management has not conducted any enquiry against the workman. The management has not proved that they conducted any enquiry and the management has also not proved that any conclusion was recorded by the management that it was not reasonably practicable to hold the enquiry proceeding. It is held accordingly that the services of workman have been terminated illegally by the management.
26. The next question which is to be decided is regarding the relief which is to be given pursuant to illegal termination of services of workman.
27. In Kendriya Vidhyalaya Sanghathan and Anr. vs. S. C. Sharma :16: 2005-LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
28. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
29. In decision dt. 10.2.2006 in LPA No. 1647/05 titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. v. Ms. Lissy Unnikunju & ors. wherein our own Hon'ble High Court relied on decision in Employers, Management of Central P & D Inst. Ltd. v. Union of India AIR 2005 SC
633. where the Hon'ble Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted.
30. In findings on issue no.1 above it has been held that the services of workman has been terminated by management w.e.f. 29.09.2004. Workman/WW1 stated in cross-examination that at present he is unemployed :17: and he is doing some beldari work as and when he gets the same in order to make a living. In the cross-examination workman/WW1 was confronted with photographs Ex. WW1/M1 to Ex. WW1/M39 by the management and the workman admitted that he has been shown in the said photographs. In the photographs Ex. WW1/M1 to Ex. WW1/M39 the workman was shown as selling vegetables on Rehari(Handcart). These photographs prove that after disengagement of workman from the management, the workman was not gainfully employed with any other management. The workman has placed on record certificate issued by Directorate of Training and Employment U.P., Department of Labour, Industrial Training Institute, Bulandshahr of the Government of U.P. which is Ex. WW1/16 and as per said certificate the workman has passed training course in the trade of Fitter and his period of training was from August 1985 to July 1987. The workman has also filed on record Apprentice Certificate dt. 18.01.1990 Ex. WW1/17 issued by Executive Engineer, Coal Handling (O & M) Division, Harduaganj 'B' Power Station, Kasimpur, Aligarh as per which workman has undergone apprentice training in the trade of fitter from 16.01.1989 to 15.01.1990. As per Ex. WW1/16 and Ex. WW1/17 workman has taken requisite training for working as fitter. As per photographs Ex. WW1/M1 to Ex. WW1/M39 placed on record by management the workman was selling vegetable in order to make a living. Hence as the workman who has obtained training as a fitter is selling vegetable in order to make a living hence it would be appropriate if the workman is reinstated with the management in order to utilize the technical :18: expertise which he has obtained after undergoing the requisite training. In the cross-examination of MW1 a question was put to the effect that whether the management is willing to reinstate the workman to which MW1 replied that management is willing to reinstate the workman if the workman apologises for remaining absent unauthorizedly. This answer of MW1 also shows that management is willing to reinstate the workman. In the circumstances the workman is directed to be reinstated in the services of management.
31. The next question which is to be answered is relating to the payment of back wages for the intervening period of disengagement of workman from the management i.e. from 29.09.2004 till the date of reinstatement. The plea of the management is that the workman is earning handsome amount by selling vegetable and on that account he is not entitled to back wages. The management has relied on photographs Ex. WW1/M1 to Ex. WW1/M39 in order to prove that workman was selling vegetables on handcart, hence, he is not entitled to back wages.
32. In Birdhi Chand Naunag Ram Jain vs. P. O., Labour Court No. IV & Ors., 109(2004) DLT 1 it was held that if in order to sustain himself, workman entered into self-employed vocation it cannot be termed as 'employed in establishment'. The workman/WW1 stated in cross-examination that he is doing some beldari work as per availability of the same in order to make a living and he earns about Rs.60/- on the day on which he gets such work and he is not getting the said work regularly. In the circumstances the workman shall be entitled to back wages @50% for the intervening period from :19: 29.09.2004. The workman shall also be entitled to a sum of Rs.5000/- (rupees five thousand) on account of cost of these proceedings under Section 11(7) of the I. D. Act. Award passed accordingly. Copies of the award be sent to the appropriate Government for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 24.04.2007 (HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI