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Judgment
Dr. S. Muralidhar, CJ
This petition by the Management is directed against the impugned Award dated 17th July, 2019 passed by the Industrial Tribunal, Bhubaneswar (Tribunal) in I.D. Case No.5 of 2011 holding that the action of the Management in terminating the services of the Opposite Party No.3 (Workman) with effect from 23rd November, 2009 was neither legal nor justified and holding the Workman to be entitled to reinstatement in service with 30% back wages.
While directing notice to issue on 15th March, 2021 this Court directed that no coercive action would be taken by the Opposite Parties against the Petitioner pursuant to the impugned Award.
The background facts are that the Petitioner Management is a Printing and Publishing Establishment owned and managed by the Servants of the People Society, having its printing and publishing units throughout the State of Odisha and in the nearby States.
The Workman approached the Management on 10th February, 2005 submitted an application seeking employment. Thereafter the Workman was appointed as a Sub-Editor on probation basis on 20th April, 2005. He was confirmed in the said post on 1st April, 2006.
By an office order dated 12th September, 2008 the Workman who was then working as a Sub-Editor in the Bhubaneswar Office and 6 other editorial staff were transferred to different places.
The case of the Management is that the Workman 3 on the same day i.e. 12th September, 2008 at about 8.10 pm rushed into the office of the Editor and questioned him about his transfer from Bhubaneswar to Berhampur. The Management alleges that he abused the Editor in a high-pitched voice and threatened him of dire consequences if his transfer order was not revoked. Following the above incident, the Workman was placed under suspension by the Management by an order dated 15th September, 2008 pending initiation of disciplinary proceeding (DP) against him. On 18th September, 2008 he was charged sheeted for serious acts of misconduct. Meanwhile, he was relieved from the Bhubaneswar Office on 13th September, 2008. However, for two months thereafter he did not join at the Berhampur Office. Therefore, for the second time, he was charge-sheeted on 11th November, 2008 for disobeying the transfer order.
On 13th October, 2008 the Workman submitted his explanation to the first charge sheet. After an Inquiry Officer (IO) was appointed, the Workman submitted his reply to the second charge sheet on 9th December, 2008.
On conclusion of the enquiry, a copy of the report of the IO was furnished to the Workman calling upon him to show cause thereto. He submitted his reply on 30th July, 2009 claiming innocence and raising grievances against the IO.
On the charge of misconduct under Clause 23(12), the punishment of "stoppage of five annual increments with cumulative effect" as far as the first charge sheet is concerned was awarded to the Workman. As regards, the second charge sheet for the misconduct under Clause 23(1) the punishment of stoppage of promotion to the next higher post for a period of five years was imposed. The punishment was under Clause 24(5)(6) of the Certified Standing Orders (CSO) of the Petitioner.
As a consequence, the suspension of the Workman was revoked. He was reinstated in service and asked to joined at Berhampur by an order dated 4th September, 2009.
When the Workman did not do so for more than a month, on 31st October, 2009 he was issued with a letter by the Management directing him to join duty at Berhampur within 10 days from the date of receipt of the said letter, failing which it would be presumed that he is no longer interested in remaining in service and it would be presumed that he has abandoned the service on his own accord. This letter further stated that there would be no further communication to him in that regard. The Management states that the said letter dated 31st October, 2009 was acknowledged as having been received by the Workman on 3rd November, 2009.
When despite the above letter, the Workman did not report for duty at Berhampur, the Management by letter dated 23rd November, 2009 dispensed with his services with immediate effect. The receipt of the aforesaid letter was acknowledged by the Workman on 3rd December, 2009.
The Workman then raised an industrial dispute and during conciliation demanded that he should be reinstated in his previous post and should be posted either at Cuttack or Bhubaneswar. The conciliation having failed, the appropriate Government (Opposite Party No.1) made the following reference to the Labour Court by an order dated 7th February, 2011 under Section 10-1(d) read with Section 12(5) of the Industrial Disputes Act, 1947 (ID Act):
"Whether the action of the Management of M/s. The Samaja in terminating the services of Sri Harekrushna Choudhury Ex-Sub-Editor w.e.f. 23.11.2009 is legal and/or justified? If not, what reliefs Shri Choudhury is entitled to?"
Contending that the above reference was faulty, the Petitioner Management filed a writ petition i.e. W.P.(C) No.22588 of 2011 in this Court challenging the order of reference dated 7th February, 2011. The writ petition was disposed of on 20th November, 2014 the operative portion of the said order reads thus:
"Learned Counsel for the Opp.Party No.1 on the other hand, submits that in reference, question of termination of services of Opp.Party No.1 being raised the Petitioner (Management) can very well take the plea of abandonment of service denying the issue of termination of service and, if the Tribunal comes to a finding that the Opp.Party No.1 has abandoned the service, the consequent termination of services without any enquiry, shall obviously be held to be legal and justified."
The Workman examined himself as W.W.No.1 in ID Case No.5 of 2011 and other two witnesses as W.W. Nos.2 and 3. Eighteen Exhibits were marked. Of these Exhibits 5, 6 10, 12 to 15 were marked with objection. The Management examined three witnesses including MW No.2 who was examined to prove that the Workman was gainfully employed elsewhere. Some documents were marked as Exhibits A to AQ/2 without objections. Exhibits AH, AJ, AL, AM and AP were objected to. The Management filed an affidavit evidence of MW No.1 on 8th June, 2015.
By an order dated 11th June, 2015 the Tribunal permitted the Workman to amend his claim statement to include a ground to declare the action of the Management to be illegal and unjustified. However, the Management was not given an opportunity to file an additional written statement or a consolidated written statement in response to the amended claims statement. This led to the Management filing W.P.(C) No.11537 of 2015 in this Court. The said petition was disposed of on 28th August, 2015 by this Court with the observation that the Management would be at liberty to file amended pleadings so as to adduce additional evidence to recall some witnesses. Thereafter, the Management filed its consolidated written statement in the Tribunal on 16th October, 2015. After conclusion of the evidence, the Management filed its written notes of submission in the Tribunal on 13th September, 2017.
In the impugned Award dated 17th July, 2019 the Labour Court came to the following conclusions:
(i) The Workman had during the cross examination stated that he had submitted a leave application on 14th September, 2009 to the Management through a messenger and that the said messenger had handed over the leave application to the Time Office of the Management. He further stated that no receipt was issued to that effect, but claimed that he had filed a transaction report in support of his plea that he had sent the leave application to the Management. However, the Workman had not examined the messenger (s). There was no single scrap of paper in support of the claim of the workman that he had applied for leave by way of separate of applications. The Tribunal concluded that "there is absolutely no convincing material before the Tribunal to hold that after his reinstatement the second party had ever sent any leave application to the Management."
(ii) The case of the workman of having lodged complaints in Exhibits 14 and 15 before the District Labour Officer (DLO), Cuttack was also "shrouded in doubt".
(iii) The CSO does not specify what action the Management should take after deeming the workman to have abandoned the service under Clause 22 of the CSO. The CSO did not say that it would be deemed that the Workman is no longer interested in service or has left service of the undertaking of his own accord and that the management would in that event terminate/dispense with his service by making necessary correspondence in that regard.
(iv) The letter dated 31st October, 2009 (Exhibit 4) was at best a letter of reminder/warning. There was nothing on record to show that prior to issuance of the notice dated 23rd November, 2009 the Workman had been served with any letter or show cause calling upon him to explain the circumstances, if any, for which he remained absent for the relevant period and also why it will not be deemed that he is no longer interested in service or has left the service of the undertaking on his own accord.
(v) The act of the management in deeming that the Workman is no longer interested in service or has left the service on his own accord was without following the relevant provisions of the CSO. It was palpably wrong and not sustainable in the eye of law inasmuch as no reasonable opportunity has been provided to the Workman to put forth his case. It was "in total contravention of the principles of natural justice."
(vi) The act of terminating the services of the Workman was 'retrenchment' and was in contravention of Section 25-F of the ID Act. The mandatory procedure thereunder had not been complied with by the Management before termination of the services of the Workman.
(vii) From the evidence of the M.W. No.2 it was seen that a substantial sum of money was deposited in the account of the Workman each month from 22nd May, 2015 to 5th January, 2017. Moreover, during his cross-examination the Workman admitted that cash of Rs.29,800/- was credited to his account from Newage Media and Publication Pvt. Ltd. as he used to write political columns in the daily newspaper "Nitidina". The Workman was also partly to be blamed for the issuance of the impugned order as he could have taken diligent steps after the letter dated 31st October, 2009. Accordingly, it was deemed proper to award 30% of the back wages besides ordering reinstatement.
This Court has heard the submissions of Mr. Sanjay Kumar Mishra, learned counsel for the Petitioner and Mr. Ashok Kumar Mohapatra, learned counsel appearing for the Workman.
It was urged by Mr. Mohapatra that the finding of the Tribunal that the Workman had stayed away from work despite the orders issued to him by the Management asking him to report for duty at Berhampur was erroneous. According to him, the Workman had submitted leave applications and this was acknowledged by the Management.
This Court finds that the Labour Court has in fact not agreed with the above submission on behalf of the Workman. The categorical finding of the Labour Court was that despite the Workman stating that he had sent his leave application through a messenger he had not made any endeavour to examine the said messenger. The further categorical finding was that there was no convincing material before the Tribunal to hold that after his reinstatement the Workman had ever sent any leave application to the Management. Even as regards the complaints allegedly lodged by the workman before the DLO, Cuttack, the finding was that he "has not made any attempt to file any notice issued to the Management or to him in connection with those complaints". The third finding against the Workman by the Tribunal is that the evidence adduced regarding the steps taken by him between 4th and 23rd September, 2009 "does not inspire confidence of this Tribunal".
Consequently, this Court is unable to agree with Mr. Mohapatra, learned counsel for the Workman that the above finding of the Tribunal was erroneous.
The central plank of the submission of Mr. Mishra, learned counsel for the Management was Clause 22 of the CSO which reads as under:
"Clause-22-Abandonment of Service - Except as otherwise expressly provided for in these rules, no employee shall be allowed to absent himself from work without the previous sanction of the Undertaking. Absence from duty without permission shall be treated as misconduct and dealt with in accordance with Rule 23 below. But, in case of continuous absence of 10(ten) days or more, it will be deemed that the employee concerned is no longer interested in service and has left the service of the Undertaking of his own accord."
Mr. Mishra placed reliance on the decisions in The Buckingham and Carnatic Co. Ltd. v. Venkatiah AIR 1964 SC 1272 and Western India Match Company Ltd. V. Workmen AIR 1973 SC 2650 and urged that the CSO would be binding on both the Management and the Workman. In Western India Match Company Ltd. (supra) the Supreme Court held: "as long as the standing order in force, it is binding on the company as well as the workman". It was held that even if there was any special agreement, it could not prevail over the SO.
In terms of Clause 22 of the CSO, which was binding on the Workman, the Tribunal had to determine if indeed there was abandonment of service by the workman. In Buckingham and Carnatic Co. Ltd. (supra), the Supreme Court observed as under:
"It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. 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. But where parties agree upon the terms & conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself."
Likewise, in National Engineering Industries v. Hanuman (1967) II LLJ 883, the Supreme Court held that where the SO provides that the workman will lose his lien on his appointment in case he does not join duty within eight days of the expiry of his leave, it would mean that his services would automatically stand terminated on that contingency happening. In G.T. Lad v. Chemical and Fibre India Ltd. (1979) 1 SCC 590 the Supreme Court further elaborated on the concept of "abandonment of service" and observed as under:
"5(a) In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an abandonment of office'.
From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah and Ors. it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. 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. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case."
In the present case the evidence on record reveals that the Workman admitted in his cross-examination that "after my reinstatement I submitted my leave application on 14th September 2009 for one month leave on the ground of illness like high Blood Pressure. I did not attach any Medical Certificate in support of my illness. I took leave of rest and treatment. A Medical Certificate is required for sanction of leave on medical ground. As I was physically fit, I attended the Departmental Enquiry as well as the Conciliation Proceeding. As per the Appointment order issued to me, I can be transferred and posted in any Division or Unit of the Management in anywhere in India and I am required to comply such transfer and posting order of the Management without any objection and non-compliance of such order amount to misconduct. There is no change of service conditions, when I was transferred from Bhubaneswar to Cuttack and vice versa."
The Workman again admitted in his cross examination that he had not filed any transaction/document in the Court in support of his leave application.
From a careful perusal of the evidence from the Workman, it is plain that he did receive the order that he should report at the Berhampur Office upon his reinstatement in service. It is also not in dispute that he received a reminder on 23rd November, 2009. He also was unable to produce any proof of having sent any leave application to the Management. The findings of the Labour Court in this regard, as already noticed, are entirely against the Workman.
Once it is shown that the conditions for the applicability of Clause 22 of the CSO stand fulfilled, the consequences have to follow. Therefore, in the considered view of the Court, there was no requirement for the management to once again initiate the process of inquiry against the Workman on the charge of abandonment of service. The enquiry for a similar charge already stood concluded with a punishment being awarded to the Workman. As a result of that inquiry, he was required to report for duty at Berhampur upon reinstatement. The findings of the Tribunal in this regard are therefore not in consonance with Clause 22 of the CSO. Once it has been proved satisfactorily by the Management that both the letters dated 31st October and 23rd November, 2009 were received by the Workman and further on the Tribunal's own finding the Workman's defence of having sent the leave application was disbelieved, there was no occasion for the Tribunal to set aside the order of termination of services only because there was no compliance with the requirement of Section 25-F of the ID Act.
With the Workman deliberately staying away from work without justification, and with his being bound by the CSO, another enquiry against him for abandoning service, would be a pointless exercise.
The Workman also did not offer a satisfactory explanation to the Management's case that he was gainfully employed elsewhere after the termination of his services. Despite again finding against the Workman in this regard, the Labour Court erred in ordering that he should be paid 30% back wages on reinstatement.
For all the aforementioned reasons, the Court is unable to agree with the Tribunal that the termination of the Workman's service was bad in law on account of non-compliance with Section 25-F of the ID Act. There was no occasion, therefore, for the Tribunal to order his reinstatement with 30% back wages.
The impugned Award of the Labour Court is hereby set aside. The writ petition is allowed, but in the circumstances, with no order as to costs.
An urgent certified copy of this order be issued as per rules.
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