M/S RAXA SECURITY SERVICES LIMITED vs SAGAR KUMAR MANDAL & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 30h November, 2023
Pronounced on : 11th December, 2023

+ W.P.(C) 8942/2023, CM APPL. 33912/2023 & CM APPL. 39479/2023.

M/S RAXA SECURITY SERVICES LIMITED ….. Petitioner
Through: Mr. N B Joshi, Adv.
versus
SAGAR KUMAR MANDAL & ORS. ….. Respondents
Through: Ms. Prerna Mehta, Adv.
CORAM:
HON’BLE MR. JUSTICE ANISH DAYAL

JUDGMENT
ANISH DAYAL, J.
1. This petition assails order dated 17th March, 2023, passed by Presiding Officer, Labour Court, Rouse Avenue Court Complex, New Delhi in LIR No. 981/2016 (“impugned award”) titled “Sagar Kumar Mandal v M/s Raxa Security Services Limited & Ors”.
2. By the said impugned award, the Ld. Labour Court held that the service of respondent No.1 worker has been illegally terminated by the petitioner without complying with conditions stipulated in the Industrial Disputes Act, 1947 (“ID Act”); that respondent No.1 is entitled to be reinstated to the post held with the petitioner management on the date he was terminated with 50% back wages on his last drawn wages or minimum wages, whichever is higher, from 02nd November, 2012 (date of termination) till the date of the award; that these amounts that have accrued in favour of respondent No.1 are to be paid within three months from the date of the award, failing which they will carry interest @9% from the date of accrual till final payment; that in case respondent No.1 attains the age of superannuation in the meantime, he shall be paid back wages and other related benefits as arrears along with pension benefits.
Factual Background
3. Respondent No. 1/worker was appointed by the management of M/s Corporate Infrastructure Services Pvt. Ltd as Driver w.e.f. 01st June, 2006. He was initially appointed on probation and his services stood confirmed on 01st December, 2006. Respondent No.1’s services were transferred to respondent No. 3/M/s Delhi International Airport (P) Ltd w.e.f. 01st April, 2007 and a transfer letter to this effect was issued. Subsequently, his services were again transferred to the petitioner/M/s Raxa Security Services Ltd. w.e.f. 01st January, 2008 and a transfer letter to this effect was issued on 18th January, 2008. The last drawn salary of the worker was Rs. 15,363/-.
4. Respondent No.1 sent a demand notice dated 04th October, 2012 to the management for wrongful transfer and non-payment of allowances. As per him, this annoyed the management and they terminated the worker’s services on 02nd November, 2012. The worker, therefore, sent another demand notice on 13th December, 2012 for wrongful termination. However, by letter dated 21st December, 2012, the management communicated to the worker that as he had absented himself from work since 05th November, 2012 without any sanction, he was deemed to have abandoned his employment.
5. Accordingly, the worker initiated conciliation proceedings against the management, which were unsuccessful. Hence, a reference was made to the Ld. Labour Court, which passed the impugned award.
Submissions on behalf of the Petitioner
6. Learned counsel for the petitioner submitted that all three entities, viz, respondent No. 2, respondent No. 3, and the petitioner were part of the GMR Group. The petitioners submitted that the worker had unauthorizedly absented himself from duty since 05th November, 2012 and had failed to join service despite being called upon to do so. Therefore, respondent No.1 had effectively abandoned his job.
7. The impugned award while assessing this (as issue No. 1) in paragraph 25 noted that while the management took different stands in the written statement regarding the worker’s conduct and abandonment, it never initiated any disciplinary or enquiry proceedings against worker for unsanctioned absence, nor did it issue any charge sheet or memo.
8. Further, in paragraph 26, the Ld. Labour Court noted that Section 25F of the ID Act has not been complied with despite the worker completing 240 days of service with the management. It was noted that management did not place any document on record to show that the worker was issued any notice for not joining duties. In this regard, the petitioner’s counsel asserted that since it was a case of abandonment, there was no requirement of issuing a notice or initiating an inquiry proceeding. For this, he relied upon appointment letter dated 25th May 2006 that was issued to the worker, appointing him as a driver w.e.f. 01st June, 2006.
9. Clause 5 of the Terms and Conditions attached as Annexure-1 to the said appointment letter reads as under:
“5. If you remain absent for more than three consecutive days without permission in writing of the management or if you proceed to leave without sanction or over stay the sanctioned leave for three consecutive days without first getting it sanctioned, your services will automatically come to an end and it will be presumed that you have abounded the employment of your own accord.”

10. Petitioner’s counsel submitted that this was a self-implementing clause, where if an employee is absent without sanction for more than three consecutive days, his services are automatically terminated and it is presumed that he has abandoned his employment. Petitioner’s counsel further relied upon Section 2(oo) of the ID Act (which defines “retrenchment”) which is extracted below for reference:
“(oo) “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;”
(emphasis supplied)
11. Petitioner’s counsel relied on sub-clause (bb) of the said provision, which is an exclusion to the scope and purview of ‘retrenchment’. Petitioner’s counsel submitted that since the contract was terminated under the stipulation provided in the contract in that behalf (i.e. Clause 5 of the Terms and conditions as noted above), it would not be a case of retrenchment and should be excluded from its purview. Therefore, there was no requirement to issue a notice.
12. Reliance in this regard was placed on the decision in Vijay S. Sathaye v. Indian Airlines Ltd., (2013) 10 SCC 25, especially paras 12 and 14, which are extracted below:
“12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retrenchment” from service. (See State of Haryana v. Om Parkash [(1998) 8 SCC 733].”
(emphasis supplied)

13. Reliance was also placed on demand notice dated 13th December, 2012 sent by the worker to the management. It was stressed that respondent No.1 stopped coming to work from 05th November, 2012, and it was only after a period of 39 days that he sent a demand notice on 13th December, 2012. Therefore, the allegation of illegal termination was only an afterthought. Further, the worker failed to provide any evidence to show that he came to work after 05th November, 2012 or that he was denied entry.
14. Petitioner’s counsel further submitted that there was no reason to terminate the worker and in fact they had promoted him vide letter dated 01st July, 2012. Also, the worker sent another demand notice dated 04th October, 2012, whereby he demanded increments and parity with employees working with respondent No. 3, failing which, he could be re-transferred to his principal employer respondent No. 3. It was, therefore, submitted that the worker abandoned his job in order to possibly join respondent No. 3, since his demands to the petitioner management were unreasonable and were not agreed to.
Submissions on behalf of the Respondent
15. Refuting the submissions made by the petitioner’s counsel, respondent No.1’s counsel relied upon the statement of claim wherein it is stated that respondent No.1 had first sent a demand notice dated 04th February, 2012, through the Union, regarding unpaid dues and allowances. The demands raised therein irked the management, and instead of agreeing to the same, they terminated him on 2nd November, 2012, without any notice. Thereafter, he made several representations and met with the CEO in person, but all efforts were in vain.
16. Accordingly, respondent No.1 sent the second demand notice to the management on 13th December, 2012 making a specific request to be reinstated. However, his request was not acceded to. These assertions also formed part of the evidence affidavit filed by the worker before the Ld. Labour Court. Furthermore, it was submitted that respondent No.1 worker was not cross examined regarding his non-reporting to office by the management’s counsel during cross examination.
17. Reliance was placed by the respondent’s counsel on the decision of a Co-ordinate Bench of this Court in Engineers India Ltd. v. Labour Court, 2018 SCC OnLine Del 7572 (“Engineers India”), which involved a petition against reinstatement of a worker with full back wages and consequential benefits and also related to a case of abandonment. In para 51 of Engineers India (supra), this Court relied on the decision of the Hon’ble Supreme Court in D.K. Yadav v. J.M.A. Industries Ltd., 1993-3 SCC 259 where a similar clause in the Standing Orders mandated that, in case an employee does not report for duty within 8 calendar days, he shall be deemed to have automatically abandoned his services and lose his lien on his appointment and his name would be struck off. The Court after traversing the law and various provisions on the issue of abandonment, culled out guiding principles at para 70, which, for ease of reference is extracted below:
“70. Having thus presented a fair panorama of certain leading decisions of the Supreme Court, on the question of “deemed abandonment” of service, the following guiding principles may, safely, be said to emanate therefrom:
(i) Common law principles, on the issue of abandonment from service, would not apply, where the abandonment is by way of regulatory fiat, invoking any applicable Clause which contemplates “deemed abandonment”. In such cases, the clause itself would have to be interpreted, to discern whether a case of “deemed abandonment” can be said to have been made out, or not.
(ii) Intention, or animus, to abandon, is the necessary sine qua non, for any case of “abandonment” to be said to exist. In the absence of intention, there is no abandonment. Any clause contemplating “deemed abandonment”, even if it exists, cannot be so interpreted as to deem abandonment to have taken place, even where intention to abandon is not apparent.
(iii) Whether intention to abandon exists, or not, is a question of fact, to be determined in each case.
(iv) Termination, or removal, from service, is a positive act of the employer; per contra, abandonment is a positive act of the employee.
(v) The fact that the act, which, per Rule, Regulation or Standing Order, is deemed to amount to “abandonment of service”, also constitutes “misconduct”, within the said applicable rules or regulations, is not a ground to contend that the employer necessarily had to treat the act as “misconduct” and proceed against the employee by way of a domestic inquiry or disciplinary proceeding; the discretion, in this regard, vests with the employer.
(vi) Any evidence, to indicate that the employee, or workman, desired to join duty, but was prevented from doing so, would, by itself, militate against any presumption of “abandonment”.
(vii) Unless and until it could attract one or more of the exceptions statutorily engrafted in Section 2(oo) of the ID Act, striking, of the name of a workman, off the rolls of an establishment, on the ground of the workman having “abandoned” his services, would tantamount to “retrenchment” within the meaning of the said Act.
(viii) The principles of natural justice have, in all cases, to be observed before treating an employee to have abandoned his service, even if the Rule, or Clause, deeming “abandonment” to have taken place, does not expressly contemplate compliance with any such principles. At the same time, if an employee unequivocally expresses his desire to abandon the services of the employer, by entirely failing to turn up for work or otherwise, then, no notice, prior to removal of the name of the employee from the rolls of the employer, would be necessary, as any such notice would only be an empty formality.
(ix) Exclusion, from the ambit thereof, of the principles of natural justice, would render the provision of “deemed abandonment”, itself unconstitutional.
(x) Cases of abandonment, by invocation of the provisions of Bipartite Settlements, between Banks and their employees, may stand on a different footing, as they are based on an inter se, between employer and employee (s), and have to be examined separately. The present case not being one such, I do not propose to enter into the said arena.”

18. Placing substantial reliance on this set of guidelines and principles, the respondent No.1’s counsel submitted that there has to be an intention or an animus to abandon, which is the necessary sine qua non for any case of abandonment to exist. Furthermore, whether such intention to abandon services exists or not is a question of fact. Respondent No.1’s counsel, therefore, submitted that the positive act of abandonment was absent in the present case.
19. On the issue of whether notice was issued to the worker, the following was submitted. Appointment letter dated 25th May, 2006, issued to the worker was at his address noted as 20/26, Lodhi Colony, Lodhi Road, New Delhi. Later the worker had shifted to Shambhu Colony and had, accordingly, notified the management. However, the notice dated 17th November, 2012, issued to the worker by the management, apparently, warning him regarding deemed abandonment, was sent at the Lodhi Colony address and, therefore, never reached him. It was pointed out that the management witness, during his cross-examination, admitted that respondent No.1 had provided his latest address at Shambhu Colony in previous applications for leave preferred with the management. He had further admitted that purported notice of 17th November, 2012 was sent to the Lodhi Colony address.
20. It was submitted that after the management received the workers demand notice dated 13th December, 2012, it again sent a letter dated 21st December, 2012 to the Lodhi Colony address.
21. The respondent’s counsel, therefore, submitted that in any event, this cannot amount to a service of proper notice on the worker.
Analysis and Conclusion
22. Having heard counsel for the parties and after perusing the documents and pleadings of the file, this Court is of the opinion that the impugned award was well reasoned, justified and based on logic and rational. There was nothing perverse or illegal in the impugned award, nor was it passed without or in excess of jurisdiction, which would provoke this Court to exercise its extraordinary jurisdiction. This is based on the following reasons:
(i) It was a fact that the worker had continued in employment with one of the group companies under the GMR group w.e.f. 01st June, 2006. He was first appointed by respondent No. 2, thereafter transferred to respondent No. 3 and finally to the petitioner. It is an admitted fact that each of these three entities form part of the GMR Group, therefore for all purposes, the transfers would be treated as continuity of service.
(ii) It is also an admitted fact that the worker had been claiming increments and parity with the employees of respondent No.3, from where he had been transferred, but the same was not allowed by the petitioner management. This is clearly evident from the demand letter dated 4th October, 2006 and also by the statement of claim filed by respondent No.1 worker before the Ld. Labour Court. In the written statement of the management, in response to these statements, the management has clearly stated that his demands were undeserving of consideration.
(iii) It is also evident from the communications sent i.e. the demand notice, and the letter dated 27th December, 2012, that the worker had informed the management of his change of address from Lodhi Colony to Shambhu Colony. The said letter was part of the record filed before the Ld. Labour Court. Moreover, the management witness also admitted that they had knowledge of the fact that respondent No.1 had shifted to Shambhu Colony.
(iv) If one was to believe the management’s contention that the worker had abandoned his services w.e.f. 05th November, 2012, it would be incumbent upon the management to show that they issued a communication to the proper address in order to notify him. However, the letter 17th November, 2012, was sent to the Lodhi Colony address and was clearly not received by the worker.
(v) However, without going into proof of dispatch and receipt, the thrust of the petitioner’s argument was that no notice was required in law to be served on the worker in light of the terms of employment read with Section 2(oo)(bb) of the ID Act, (as noted above). The said provision provides that termination of service of a worker as a result of non-renewal of contract, on its expiry, would not amount to retrenchment. What is relevant is sub-clause (bb) of Section 2(oo), which excludes a situation where the termination is under a clause in the contract of employment. In this case, the issue would be whether Clause 5 of the Terms & Conditions annexed to the appointment letter gives a unilateral right to the management to consider the workman’s purported absence as deemed abandonment, even without issuing any notice or holding any enquiry. The reliance on Vijaya S. Sathaye (supra) by the petitioner counsel may not come to their aid. For the reason that the said observation by the Hon’ble Supreme Court is premised upon a long period of absence which has been equated to voluntary abandonment of service and therefore excluded from the scope and purview of retrenchment.
(vi) In contrast, from principles culled out in Engineers India (supra), it is clear that, firstly, there has to be an intent or an animus to abandon the service. This is the sine qua non for any abandonment to exist. Secondly, whether the intention exists is a question of fact to be determined in each case; thirdly, abandonment has to be a positive act of the employee; fourthly, evidence if any to indicate that the employee desired to join duty but was prevented from doing so would militate against any implication of ‘abandonment’; fifthly, principles of natural justice in all cases have to be observed before treating an employee to have abandoned his services, even if the provision deeming abandonment does not expressly contemplate compliance with any such principles.
(vii) Applying the said principles to the facts of this case, it is evident from the statement of claim of the worker as also from his demand notice dated 13th December, 2012, issued just about a month after he allegedly stopped reporting for duty, that he was seeking reinstatement with full back wages with the establishment. Although the management admits receipt of this notice, he was not allowed to be reinstated with additional back wages with the establishment.
(viii) Even in his statement of claim, it has been stated that the worker made several representations to the management’s office, met the CEO and other officials in the management post his purported termination, but he was not permitted to rejoin. On this aspect there is no cross-examination by the management’s counsel. In these circumstances, it is clear from the testimonies and communications that there was a specific intent expressed by the worker to be reinstated, which is antithetical to a voluntarily positive act of abandonment.
(ix) Further, insofar as Clause 5 of the Terms and Conditions annexed to the appointment letter is concerned, applying Engineers India Limited (supra), the principles of natural justice would have to be read into the said clause. Notwithstanding that the said clause provided for automatic termination, the worker ought to have been put to proper notice (at the last known address of the worker) or at the very least upon receiving his demand notice dated 13th December, 2012, he should have been called in and some conciliation/discussion ought to have happened. Short of actually conducting an enquiry into his unauthorized absence, as per the management, the management at the very least was obliged to comply with principles of natural justice before simply treating it as termination.
(x) Ld. Labour Court has rightly relied upon the Hon’ble Supreme Court’s decision in D.K Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259 wherein the following relevant observation was made:
“14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice.”
(emphasis supplied)
23. In view of the foregoing reasons, no ground for interference with the impugned award is made out.
24. The present petition is accordingly dismissed, along with pending applications, if any.

(ANISH DAYAL)
JUDGE

DECEMBER 11, 2023/RK

W.P. (C) 8942/2023 Page 2 of 2