1 IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS: SHAHDARA : DELHI [CASE NUMBER] Date of Institution : 02.08.2007 Award Reserved on : 22.09.2008 Date of Award : 27.09.2008 BETWEEN SH. VISHRAM SINGH S/O SH. RAM JEET C/O ALL INDIA GENERAL MAZDOOR TRADE UNION 170, BAL MUKUND KHAND, GIRI NAGAR, KALKAJI, NEW DELHI-19. AND M/s D & A PACKAGING 214/2, NANGLI SAKRAWATI, NAZAFGARH, NEW DELHI-110043. AWARD 1. Statement of claim under [SECTION] of the [ACT] (hereinafter called the Act) filed by the claimant pleading therein following facts : He was appointed by the management as 'Machine Man' w.e.f. 10.05.1999 and his last drawn wages were Rs.2900/- p.m. He worked honestly and diligently and never gave any cause of complaint to the management. Management did not provide him statutory benefits such as leave book, wages slip, attendance card, casual or earned leave, overtime allowance, House Rent Allowance. When he demanded the [CASE NUMBER] 2 same management got annoyed terminated his services on 26.02.2007 without any notice or payment which is violative of [SECTION] of the Act. Management also withheld his wages for the period from 01.12.2006 to 25.02.2007. He sent demand notice to the management by registered post on 02.03.2007 but the management did not respond to the same. He is unemployed since the date of alleged termination of his services. He has prayed for his reinstatement with continuity of service and full back wages. 2. Management contested his claim vide its written statement. It is denied that he ever demanded any statutory benefits. It is denied that his services were terminated. It is denied that his wages were withheld w.e.f. 01.12.2006 to 25.02.2007. It is denied that management received any demand notice. It is alleged that he was unauthorizedly absent from duty and management sent serveral letters to him dated 14.01.2007, 28.01.2007, 17.02.2007, 10.03.2007, 23.03.2007 to report for duties. It is further stated that management appeared before Assistant Labour Commissioner and apprised him about the true facts. [CASE NUMBER] 3 It is also stated that workman was expected to report for duty on 22.03.2007 at 9.00 am as per his assurance given to Assistant Labour Commissioner but he never reported for duty. It is further stated that management vide its letter dated 08.02.2007 informed the Assistant Labour Commissioner about the failure of the workman in joining duty as per assurance given by him to Assistant Labour Commissioner. It is stated that he cannot take advantage of his own wrong and as such is not entitled to any relief. 3. Following issues were framed : 1. Whether the services of the workman terminated unlawfully by the management ? 2. Whether the workman abandoned his employment by remaining absent from duty ? 3. Relief. 4. Workman examined himself as WW1 and thereafter closed his evidence. Management did not adduce any evidence. 5. I have carefully perused the material available on the record [CASE NUMBER] 4 and have heard Sh. [ENTITY], learned authorized representatives for workman. ISSUE NO.1 & 2 6. Both the issues are interrelated and are therefore taken up together for adjudication. 7. Workman has pleaded that his services were terminated unlawfully on 26.02.2007 on his persistent demand for statutory benefits without any notice or payment which is violative of [SECTION] of the Act. Management, on the other hand, stated that he was absent from duty and failed to report for duty despite the fact that management called upon him to report for duty vide its letters dated 14.01.2007, 28.01.2007, 17.02.2007, 10.03.2007 and 23.03.2007 but workman did not responde to the same and has thereby abandoned his job. 8. Workman was not confronted with any letter which management had allegedly written to him vide which it called upon [CASE NUMBER] 5 him to resume duty. In his cross examination workman denied that he received any such letter. He also stated that when Assistant Labour Commissioner directed him to join duty he alongwith Labour Inspector visited the management for duty but management did not allow him to join duty. 9. In [PRECEDENT] Hon'ble Apex Court held that abandonment of employment is always a question of intention which cannot be inferred without adequate evidence in that behalf. 10. In [PRECEDENT] Hon'ble Apex Court observed that intention to abandon employment is a question of fact which can be inferred from the act and conduct of the workman and a temporary absence from duty cannot be treated as abandonment but it has to be a permanent break intended by the workman. 11. In Dr. (Mrs.) Daksha Sankhla v. Jai Narain Vyas University, [CASE NUMBER] 6 Jodhpur, and Others, 2001 lLR 1070 the Hon'ble Apex Court held that the abandonment of services amounts to intention on behalf of the employee to put an end to his employment of his free will. 12. It has been repeatedly emphasized by the Hon'ble Apex Court that abandonment of service is not a temporary break but an intention to give up the job. 13. In [PRECEDENT], our own Hon'ble High Court held that abandonment on the part of the workman would not be presumed in the absence of any show-cause notice or charge-sheet by the employer, hence reinstatement of the workman with full back-wages, as awarded by the Tribunal will not be interfered by the High Court. 14. In [PRECEDENT] it was held that the plea of the employer that the workman abandoned the job of his own accord by not reporting for work will not be tenable when no letter was sent by the employer to the workman nor any [CASE NUMBER] 7 enquiry was initiated and, as such, non compliance of [SECTION] of the [ACT] providing for payment of retrenchment compensation at the time of termination of the workman will lead to reinstatement of the workman. 15. In the case of [PRECEDENT], it was held as under : "9. Even assuming he was late in reporting for his duty, his services could not be terminated without issuing a charge-sheet and holding an inquiry." "10. Even assuming the case of the petitioner - management that leave was denied, yet the termination of services was illegal and could not have been done without issue of a charge-sheet and holding of an enquiry." In that case management had taken the plea that the workman had absented himself from duty unauthorizedly. No disciplinary action was initiated by the management for alleged [CASE NUMBER] 8 absence of the workman. Stand of the management that the worker had abandoned the services was not believed. 16. Our own Hon'ble High Court in the case of [PRECEDENT] held as under : "The award of the Labour Court in declining to grant relief on the ground that he has abandoned the job will be quashed since even in abandonment of job by a workman, an employer has to give an opportunity to the workman by holding of an enquiry." 17. Management has not adduced any evidence to prove that it ever wrote any letter to the workman thereby calling upon him to either explain his unauthorized absence or resume his duty. 18. Management has failed to prove that workman stopped coming to duty and left the job of the management. There is absolutely [CASE NUMBER] 9 no evidence to support the said contention. In absence of any evidence showing abandonment of employment by the workman case of the workman that his services were terminated becomes more probable. 19. In [PRECEDENT] it was held : "If the termination of an employee is based on no inquiry, no charge and not by way of punishment, than it becomes a case of illegal retrenchment. In such case, the Workman will be entitled to reinstatement with full back wages." 20. Workman pleaded in para 7 of statement of claim that he is unemployed since the date of termination of his services. There is no evidence that he is gainfully employed since then. As such he is entitled to full back wages as held in [PRECEDENT] where the Hon'ble High Court observed : "In this view of the matter, in view of the authoritative principles laid down by the Apex Court which are binding on this court, there being no evidence of [CASE NUMBER] 10 gainful employment of the workman or any other circumstances justifying denial of the back wages, the award of the industrial adjudicator holding that the workman was entitled to reinstatement with continuity of service and full back wages cannot be faulted in any manner." 21. In [PRECEDENT] our own Hon'ble High Court observed : "33. The workman was prevented from rejoining the service for the actions of the management. The finding of the industrial adjudicator to the effect that the workman is responsible for his unemployment has to be set aside and quashed.
Here was a workman who was struggling in litigation. In a country where it is extremely difficult, if not impossible to get a job it cannot at all be believed that a person who was litigating for adjudication of his rights could have any measure of success in getting alternative employment while his industrial dispute was pending adjudication and the petitioner was involved in litigation. The very fact that the petitioner was litigating against his employer would have been a factor which would have militated against him in getting the employment."
22. In [PRECEDENT] dated 2.6.2006 our own Hon'ble High Court after considering various judgments entitled [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], Management of Asiatic Air Conditioning and Refrigeration (P) Ltd. vs. POALC-X & Another 114 (2004) DLT 358, held that :
"Once the industrial adjudicator had arrived at a finding that the termination of the services of the petitioner was contrary to law, he would have normally become entitled to reinstatement into service.
If the workman had been reinstated into service, the corollary would have been a direction to pay full back wages to the workman."
ISSUE NO.3 : RELIEF
23. In view of the aforesaid the workman is held entitled to reinstatement with full back wages from the date of termination of his services i.e. w.e.f. 26.02.2007 till date. Appropriate government be informed. File be consigned to record room.
Announced in the open court PRESIDING OFFICER today. [CASE NUMBER]