YASHVEER SINGH vs M/S SHRI RAM KISHAN CHAND

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 26th April, 2024
+ W.P.(C) 2392/2012
YASHVEER SINGH ….. Petitioner
Through: Ms.Arati Mahajan Shedha and Ms.Shriya Sharma, Advocates

versus

M/S SHRI RAM KISHAN CHAND ….. Respondent
Through: Mr.Rajiv Dewan, Advocate

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of petitioner seeking the following reliefs:-
“a) Issue a Writ of “Certiorari” on any other appropriate writ, order or direction setting aside the award dated 03.06.2011, passed by the Ld. Labour Court No. XVI, Karkardooma Courts, Delhi in I.D. No.485/06 to the extent that it has held that the workman remained voluntarily absent after 22.02.05 on the pretext of non settling of his account and that the services of the workman had not been terminated by the management rather the workman voluntarily remained absent due to non settling of his accounts,
b) Set aside the termination of the services of the petitioner by the respondent as illegal and unjustified.
c) Issue a writ of “Mandamus” or any other appropriate Writ, order or direction to the respondent to reinstate the petitioner in service with effect from 22.2.05 with all consequential benefits including full back wages and continuity alongwith all other legal benefits due to him.
d) Grant any other relief which this Hon’ble Court deems fit and proper in the facts and circumstances of the case so as to advance the cause of substantial justice.
e) Grant cost of this petition to the petitioner.”

2. The petitioner in the instant case was employed with the respondent-firm as a driver since 12th October, 2000 and drawing a salary of Rs.6,000/- per month.
3. On 22nd February, 2005, the respondent/management allegedly terminated the services of the petitioner verbally without issuing any notice and refused to take him back on his duty. Thereafter, the petitioner sent a legal demand notice dated 5th March, 2005 to the respondent/management through registered post, stating therein that his termination was illegal, arbitrary in nature and no procedure prescribed under the law was followed.
4. Pursuant to the above said notice, the respondent/management sent a reply dated 21st March, 2005 stating that the services of the petitioner was never terminated and he was at liberty to join his duties anytime. It was also mentioned that in case he was not interested to join the services, he could settle the accounts and tender his resignation.
5. It is stated that the respondent management failed to reinstate the petitioner leading to filing of an Industrial Dispute vide I.D.No.485/2006, whereby, the petitioner prayed for reinstatement in the service with full back wages, with continuity of services and all the consequential benefits.
6. Pursuant to completion of the proceedings, the learned Labour Tribunal (‘Court below’ hereinafter) passed an award dated 3rd June, 2011 (‘impugned award’ hereinafter), thereby, dismissing the claim filed by the petitioner.
7. Aggrieved by the same, the petitioner has preferred the instant petition.
8. Learned counsel appearing on behalf of the petitioner submitted that the learned Tribunal failed to appreciate the fact that despite several efforts to join the services, the respondent/management did not allow the petitioner to join his duties.
9. It is submitted that at the time of termination of service of the petitioner, the respondent/management neither gave any order in writing nor paid him any wages and also did not issue any chargesheet to him. Furthermore, the respondent/management did not pay the earned wages of the workman for the period between 1st May, 2004 to 22nd February, 2005.
10. It is submitted that the contentions made in the reply of the respondent/management are concocted, fabricated and baseless as whenever the petitioner tried to join the services, the respondent/management refused to let him resume his duties.
11. It is submitted that the learned Court below erroneously decided the dispute against the workman holding that the services of the workman had not been terminated by the management, rather the workman voluntarily remained absent due to non-settling of his accounts.
12. It is submitted that the respondent/management never issued any notice to the petitioner seeking explanation as to why he did not join the services after completion of 15 days leave.
13. It is submitted that no documents and evidences were placed before the learned Tribunal by the respondent to establish whether the respondent/management issued any notice to this effect or not.
14. It is submitted that the learned Court below reached to the conclusion without any basis, as well as did not consider the fact that there was no dispute between the parties for settling the accounts. Furthermore, the management had neither shown nor filed the relevant legal documents i.e. attendance register as well as wages register, which are required to be kept by the management as part of the service rule requirement.
15. It is further submitted that the learned Tribunal has passed the impugned award without considering the averments made in the claim of the petitioner as well as evidences produced before it including the cross-examination/chief of the witnesses.
16. Hence, it is prayed that in view of the foregoing submissions, the impugned award being contrary to the law is liable to be set aside.
17. Per contra, learned counsel appearing on behalf of the respondent vehemently opposed the instant petition submitting to the effect that there is no illegality in the impugned award passed by the learned Tribunal as the same has been passed after considering entire facts and evidences on record.
18. It is submitted that despite asking the petitioner to resume his duties, he voluntarily remained absent from the services, therefore, leading to abandoning of the services on its own. Reliance in this regard has been placed upon the judgment of the Hon’ble Supreme Court in Vijay S. Sathaye vs. Indian Airlines Ltd., 2013 10 SCC 253.
19. It is submitted that the respondent management never terminated the services of the petitioner and the same is evident from the fact that the petitioner failed to produce any evidence to support the claim of retrenchment.
20. It is further submitted that the cross examination of the petitioner workman makes it evident that despite receiving the reply to the legal notice, the petitioner approached the respondent management after a delay of 2 months.
21. Therefore, in view of the foregoing submissions, it is prayed that the instant petition, being devoid of any merit, is liable to be dismissed.
22. Heard the learned counsel for the parties and perused the record.
23. It is the case of the petitioner that he was wrongfully terminated by the respondent management and despite showing his willingness, he was not reinstated leading to violation of his statutory right, however, the learned Court below failed to appreciate the material facts and therefore, passed an award contrary to the law.
24. In rival submissions, the learned counsel appearing for the respondent management argued that the learned Court below rightly appreciated the settled position of law and therefore, held that the petitioner could not be reinstated as he had voluntarily abandoned his services.
25. Therefore, the question for adjudication before this Court is whether the learned Court below rightly adjudicated the impugned order or not.
26. The relevant extracts of the impugned order reads as under:
REGARDING ISSUE NO. 1
Keeping in view of the claim, reply, documents and evidence on record, my inference is that the issue be decided against the management partly on the following grounds:
i) In the WS, management has taken a stand that on 22.2.05. workman was on duty on his truck and then he proceeded on leave for 15 days and did not tum up thereafter to join his duties and remained absent onwards. While the workman maintained that he was orally terminated on 22.2.05 and despite repeated proceedings, he was not taken on service.

ii) Whether the workman proceeded on leave for 15 days on 22.2.2005 is a question of fact. Workman led oral evidence to the fact that he did not proceed on leave while management also led oral evidence. The fact can be proved by management only after filing the relevant legal documents i.e. attendance register as well as wages register which shows the date of working and the date of leave and total days the workman worked. These registers are kept by the management as part of the legal requirement, however, neither shown nor filed in this court. By neither showing nor filing these documents, in my opinion, management has failed to prove that the workman went on leave for 15 days on 22.2.05. Hence. management has failed to prove that workman went on leave for 15 days on 22.2.2005 and thereafter did not turn up to join his duties.

iii) The stand of the workman is that he repeatedly went to the management after orally terminated by the management on 22.2.2005. The stand of the management is that the workman failed to come to the management for performing his duties. Workman admitted that after 22.2.05 workman admitted that he went again after about two months to the management for joining but he was not allowed to join by Rikky Pahwa. If the workman was not given work on 22.2.05, why workman had gone to the management only after two months to join his duties. This shows that the vital facts has been concealed from this court by the workman.

iv) There is mentioning of name of one Rikky Pahwa. Workman maintained that he was employed by Rikky Pahwa while management maintained that there is no Rikky Pahwa in the management. Workman failed to prove that there is any Rikki Pahwa who used to deal with him. Management has maintained that he management is a HUF firm and Sh. Ram Kishan Chand is his Karta. With this clear position, the existence of Rikky Pahwa is doubtful. Workman has not stated whether Rikki Pahwa was a manager or employed by the management, Workman has also maintained that he was terminated by Rikky Pahwa not by any other person. This shows that the workman was not terminated by the management.

v) The bone of contention between the parties appears to be of settlement of accounts. Workman maintained that he was not paid salary since 01.05.04 22.2.2005, Management has maintained that the workman was a driver of a tanker and he used to be given advance whenever he used to go out of station. It was further stipulated or agreed between the parties, as per the business norms, if in case of pilferage keeping aside the margin of 3%, the loss is to be borne by the driver. It is further maintained by the management that on 22.2.2005 after settlement of account, a sum of Rs. 58,105/- was due towards the workman while Rs. 47,5000/- was due on account of wages of the workman and accordingly. management maintained that the workman was to pay a sum of Rs. 10.596/- to the management. In the labour dispute, this court is not competent to look into the accounts between the parties. This court can only ascertain the wages, if due. Hence, the account can be looked into and decided only by a Civil Court.

vi) It is proved on record that after 22.2.05 workman failed to join his duties, in the cross examination, he has stated categorically that he can join only after his accounts are settled with the management. This shows that he did not want to work from 22.2.2005 onwards till his accounts are settled. This shows that he remained absent after 22.2.05 as his accounts were not settled by the management. The settlement of account is not a proper justification for the workman to remain absent. Hence, this fact goes against the management.
In view of the above discussion, I feel that management has failed to prove that the workman remained on leave on 15 days after 22.2.05, however, it is proved that the workman voluntarily remained absent after 22.2.2005 on the pretext of non settling of his accounts. The issue is decided accordingly.
11. REGARDING ISSUE NO 2 :- whether the services of workman have been illegally terminated by the management w.e.f. 22.2.05, if so, to what relief he is entitled and what directions may be issued in this regard?
Keeping in view of the claim, reply, documents and evidence on record, my inference is that the issue be decided against the workman on the following grounds:
i) By Issue No. 1 it has already been held that there was a dispute between the parties for settlement of account. Workman maintained that there was dues of salary from the management w.e.f. 01.05.04 to 22.2.05. Management maintained that workman used to fake advance and finally when the accounts were prepared, management was to pay Rs. 47,500/- an account of wages. However, against the advance paid by the management to the workman from time to time to the extent of Rs. 58.105/- showing that there was a balance of Rs. 10,596/-towards the workman,
ii) By Issue No. 1 It has already been held that the accounts can be settled only by Civil Court and not by the Labour Court.
iii) Workman alleged that he was orally terminated on 22.2.05 by one Sh. Rikki Pahwa. Management has proved the fact that Rikki Pahwa has no relation with the management. Hence, the oral termination by Riki Pahwa has no power or effect on the management as the management has not terminated the services of the workman.
iv) The workman alleged after 22.2.05 he went to join the management after two months. No reason has been given by the workman as to why he went to the management to join after two months from 22.2.05. however, workman has also failed to prove that he went to the management for joining after two months after 22.2.05.
v) Workman stated that a demand notice was sent. Management replied this notice vide reply dated 21.3.05. In the reply, management clearly stated that his services were not terminated and he was advised to join his services on the same terms and condition as existed on 22.205. Management further stated in the reply that a sum of Rs. 11.596 is due towards the workman. He was further advised to check the accounts and if he do not want to work tender resignation. Despite this clear statement to the workman to join, workman failed to join the management. Management in the WS maintained the same position to join, if after reply to the legal notice as well as in the WS filed in the court, workman do not want to join, then management cannot be blamed for the alleged termination as the fact has cone that the workman has voluntarily absented from duties.
From the above reasons and discussions, it is held that the services of the workman has not been terminated by the management rather the workman voluntarily remained absent sue to non setting of his accounts,
In Competition Printing Press Vs. Shri Jai Prakash Singh and another, 2001 (89) FLR 809, wherein it was held that
“Where workman himself remained absent for a long period and failed to accept the offer of reinstatement, ten he had himself abandoned the employment and not entailed for reinstatement thereafter.”
In Tiroki Nath (Shvi) Vs. Shri Dharam Poul Arora & Art. 2006 LLR 1043. It was held by their lordship of Delhi High Court that:
“When a workman failed to join duty when a specific offer had been made during conciliation proceedings, he is himself to blame not to join the management.”
12. Award has been passed. File be consigned to Record Room after necessary compliance by Ahimad. Copies of award be sent to the appropriate Government for publication as per law.

27. Upon perusal of the same, it is made out that after perusing the statement of claim, the learned Tribunal framed two issues and the same are as follows:-
“1. Whether workman proceeded leave for 15 days on 22.02.2005 and did not turn up to join his duties after leave and thereby remained absent onwards, if so its effect.
2. Whether the services of the workman have been illegally terminated by the management w.e.f. 22.02.2005, if so, to what relief he is entitled and what directions may be issued in this regard?”

28. On the aspect of settlement of accounts between the parties, the learned Court below has held that the said issue can only be adjudicated upon by the civil Court, therefore, the only question left for adjudication before the learned Court below was whether the services of the petitioner were terminated wrongfully or not.
29. On the said aspect, the learned Court below recorded that despite inviting the petitioner to resume his duties, the workman failed to do so, therefore, leading to the conclusion that the workman had voluntarily abandoned his services ultimately relinquishing his right to be reinstated.
30. In this regard, reference was made to both, i.e., the reply to the legal notice and the written statement of the workman, therefore, leading to the conclusion that the workman had abandoned his services.
31. In this regard, the learned counsel for the respondent placed reliance on the judgment of the Hon’ble Supreme Court in the case of Vijay S. Sathaye vs. Indian Airlines Ltd (supra). The relevant paragraphs of the said judgment read as under:
“10. Approval means confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. The very act of approval means, the act of passing judgment, the use of discretion, and determining as an adjudication therefrom unless limited by the context of the statute. There can be no quarrel with the settled legal proposition that if a statute provides for the approval of the higher authority, the order cannot be given effect to unless it is approved and the same remains inconsequential and unenforceable. (Vide Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [(2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904] , SCC pp. 341-42, paras 10-11.)
11. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12-11-1994. In view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear-cut case of voluntary abandonment of service and the petitions are liable to be dismissed.
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.
13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC 1567] this Court held as under : (AIR p. 1570, para 6)
“6. … 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.”
(See also Shahoodul Haque v. Registrar, Coop. Societies [(1975) 3 SCC 108 : 1974 SCC (L&S) 498 : AIR 1974 SC 1896] .)

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 : 1999 SCC (L&S) 262] .)
15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah [AIR 1964 SC 1272] , while dealing with a similar case, this Court observed : (AIR p. 1275, para 5)
“5. … 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.”
A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590 : 1979 SCC (L&S) 76 : AIR 1979 SC 582]

16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65 : 2000 SCC (L&S) 601] and Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC 2783] this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC 42 : (2007) 1 SCC (L&S) 327] , Chief Engineer (Construction) v. Keshava Rao [(2005) 11 SCC 229 : 2005 SCC (L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC 462 : (2009) 2 SCC (L&S) 689] .
17. Thus, in view thereof, the petitions are devoid of merits. An offer had been made by the respondents to the petitioner vide letter dated 9-4-2008 for accepting the payment of Rs 1,42,042.45p. and Rs 6,24,104.58p. However, he did not accept the said amounts. The same amounts have been paid today to Shri Manish Pitale, learned counsel for the petitioner through (i) DD No. 795783 dated 5-9-2013 drawn on State Bank of India amounting to Rs 6,24,104.58p. (Rupees six lakhs twenty-four thousand one hundred four and fifty-eight paise only), and (ii) DD No. 753199 dated 5-9-2013 drawn on State Bank of India amounting to Rs 1,42,042.45p. (Rupees one lakh forty-two thousand forty-two and forty-five paise only) and the same have been accepted herein. In view thereof, we do not see any justification to other dues. By this payment the claim stands fully and finally settled.

32. Upon perusal of the above cited paragraphs, it is made out that in case a workman voluntarily abstains from the work without any prior intimation, the same would lead to presumption of abandonment of services and therefore, the employer is not duty bound to pass any formal order to end the services of the said employee.
33. The literal meaning of term abandonment is leaving something either for a long time or permanently. As stated in the above cited judgment, the term termination is a positive action on part of the employer, whereas, abandonment of services does not need any action on their part and the same is solely attributed towards the employee.
34. In the instant case, the material on record, i.e. the reply to legal notice sent by the respondent management as well the written submissions filed on behalf of the respondent clearly depicts that the petitioner was provided the opportunity to resume the services on multiple occasions, however, the petitioner failed to join the services and did not turn up to the premises of the respondent management post 22nd February, 2005.
35. The failure on part of the petitioner to show his willingness to work in the respondent management can be construed against him as the material on record supports the contention made by the respondent management in this regard. Therefore, the non-joining of the duty would lead to termination of the services of the petitioner on its own and the same does not warrant any notice of termination from the employer.
36. From the above cited case, an analogy can be drawn with the instant case where the employer i.e. the respondent management cannot be held to be duty bound to serve notice of termination to the petitioner.
37. In light of the above discussed circumstances, it cannot be held that the learned Court below erred in rejecting the claim filed by the petitioner as non-joining of the services despite asking for the same by the respondent management is a clear case of abandonment of services by the petitioner workman.
38. In any case, it is well settled that under Article 226 of the Constitution of India, this Court does not sit as an Appellate Court against the awards passed by the Industrial Tribunal as the said Tribunals are constituted under the special legislations to adjudicate upon particular issues governed under specific statutes.
39. Hence, this Court is of the considered view that the grounds raised by the petitioner to seek the reliefs, as prayed, are insufficient and cannot be entertained by this Court.
40. In regard to the discussions of facts of the instant case as well as the law, this Court is not inclined to exercise its extraordinary writ jurisdiction under Article 226 of the Constitution of India as there is no force in the propositions put forth by the petitioner.
41. In view of the foregoing paragraphs, this Court is of the considered opinion that the impugned award dated 3rd June, 2011, passed by the learned Labour Court, Karkardooma, New Delhi in I.D. no. 486/06 does not suffer from any illegality.
42. Accordingly, the instant petition stands dismissed, along with pending applications, if any.
43. The Order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
APRIL 26, 2024
dy/av/ryp

Click here to check corrigendum, if any

W.P.(C) 2392/2012 Page 16 of 16