Subhash Chandra vs Presiding Officer and others

Shishir Kumar, J.

The present writ petition has been filed for quashing award dated 16.8.2003 published on 16.7.2004 (Annexure 6 to writ petition). Further a writ in the nature of mandamus commanding the respondent No.2 to allow petitioner to work as Office Assistant and to pay his monthly salary including all benefits.

The facts arising out of writ petition are that respondent no.2 is a recognized institution being run by a registered society. The aforesaid school belonging to minority institution and is affiliated to I.C.S.E Council, New Delhi. Petitioner was initially appointed as Office Assistant with effect from 1.1.1995 in the payscale of Rs.12002040. Since the date of appointment, petitioner was working without any break. On 7.3.1998, petitioner was not permitted to work and he was orally informed that his services have been terminated. No order of termination was ever given to petitioner. Petitioner on 10.3.1998, 16.3.1998, 25.3.1998 and on 6.4.1998 submitted representations to respondent no.2 through U.P.C but in spite of aforesaid fact, he was not permitted to work. Due to aforesaid oral termination of petitioner''s services, there was strike in the school and whole nonteaching staff of the school were involved in the said agitation. The dispute regarding termination was sent to Assistant Labour Commissioner, Allahabad The compromise dated 2.9.1998 before Assistant Labour Commissioner. There was a compromise between the manager of the school and nonteaching staff and same was also registered on 24.7.1999. In spite of aforesaid compromise petitioner was not permitted to join the office, then again the matter was laid before Assistant Labour Commissioner, Allahabad, who referred the matter to State Government under U.P. Industrial Dispute Act, 1947 and dispute was registered before respondent No.1. Respondent No.1 vide its order dated 16.8.2003, given an award rejecting the claim of petitioner.

The award dated 16.8.2003 is totally on incorrect facts and without application of mind. The respondent No.1 has failed to consider the fact that appointment of petitioner was not on daily wages and on temporary basis, therefore, he was not entitled to get prior notice or opportunity before being terminated. The appointment of petitioner was upon substantive vacancy with effect from 1.1.1995 after completion of probation period. The respondent No.1 has failed to consider this aspect of the matter. There cannot be any oral termination. It has been admitted on behalf of respondent that after 7.3.1998, when petitioner did not come to school then no notice was issued to petitioner and any chargesheet was ever given to petitioner and no enquiry whatsoever was conducted by the school management against petitioner. The respondent no.2 has also admitted this fact that services of petitioner were never terminated. This fact has also not been considered by respondent No.1 while passing award against petitioner that respondent no.2 has admitted this fact that they were ready to allow petitioner to work. This fact has also not been considered by respondent no.1 that petitioner was orally not allowed to work on 7.3.1998. The sole pleading taken by employerrespondent is that they never terminated the services of petitioner but contrary to this, employee himself did not turn up to join his services and the present case is a case of abandonment of service.

Further submission has been made that present case is not a case of abandonment of service which is clear from the award of the labour court itself. It has specifically came that after retrenchment dated 7.3.1998, petitioner sent various letters to employer requesting them to permit petitioner to join his services and further regarding settlement dated 2.9.1998. The management did not deliberate permit petitioner to join the services and took a wrong plea that services of petitioner was never terminated. The version of managementrespondent that services of petitioner was never terminated and he can join his services at any point of time was false and it was only to mislead the Court, which is clear that in spite of request made by petitioner and even after settlement, petitioner was not permitted to join his services. Further in spite of order passed by the Court, petitioner has not been permitted to join the services.

Reliance has been placed upon a judgement of this Court reported in 2003 (3) UPLBEC 2407, Kailash Motors (M/s) Vs. Presiding Officer, Labour Court (I), Kanpur and others. Taking support of aforesaid judgement, learned counsel for petitioner submits that absence of workman after expiry of leave, removal by the Management, treating him abandonment of employment, the Division Bench of this Court held that services of a permanent employee cannot come to an end even under the standing orders unless and until principle of natural justice is followed.

In 1993 FLR 211 Arun Kumar Mathur Vs. Labour Court and another, this Court has held that retrenchment of employee on the ground of voluntary abandonment as defined under Industrial Dispute Act under Section 2(OO) is bad in law.

In 2001 FLR, 274 M/s Scooter India Limited Vs. N. Mohd. Yaqub and another, the Apex Court has held that though the standing orders permit termination for unauthorised leave but there could not be any automatic termination and principle of natural justice has to be followed.

In 1993 FLR, 111, D.K.Yadav Vs. M/s. J.M.A Industries Ltd. where the services of the workman is terminated for wilful absence from duty, the Hon''ble Apex Court relying upon Articles 41 and 21 that every action of the Management must confirm to the requirements of fairness and be just and reasonable and the principle of natural justice has to be followed.

In 2002 FLR, 43 (Supreme Court), M/s. Lakshmi Precision Screws Ltd. Vs. Ram Bahagat, the Apex Court has held that doctrine of natural justice to be an inbuilt requirement on standing orders and thus termination of services of employee was held arbitrary and order of reinstatement with back wages was awarded.

In view of aforesaid fact, learned counsel for petitioner submits that action of respondents is bad in law and labour court has not considered the aspect of the matter in view of law laid down by this Court as well as the Apex Court, as such, award passed by labour Court is liable to be quashed.

On the other hand, Sri A.D. Saunders, learned counsel for respondentmanagement submits before this Court that petitioner abandoned his services on 7.3.1998. The representations alleged sent by U.P.C were never received by the answering respondent. All representations have been fabricated for the purposes of submission with writ petition. Even after settlement dated 2.9.1998, yet petitioner never presented himself, therefore, this is a clear case of abandonment of service of petitioner.

Reliance has been placed upon a judgment of this Court reported in 2003(2) U.P.L.B.E.C, 1351, Dr. Lakhte Mustaffa Kazmi Vs. State of U.P. and others. The Division Bench of this Court has held that by the conduct of petitioner, he had abandoned his service and cannot claim as a matter of right to continue in service. The industrial court has held that as petitioner has not come with clean hands, as such, he is not entitled for any relief. It is settled proposition of law that a party has to plead the case and produce sufficient evidence to substantiate his submissions made in the petition. If it is not complete, the Court is under no obligation to entertain the pleas. If no cogent reason has been disclosed and a person himself does not join the duty this can be treated to be abandonment of service voluntarily.

In 2004 (5) Supreme Court Cases, 263, Dr. Gunjeewan Garewal (Mrs.)Vs. Dr.Sumitra Dash (Mrs) and others, the Hon''ble Apex Court has held that the privilege of opportunity of hearing is not available to every person under Article 311 of the Constitution of India, is available to persons holding "civil post" under the Union or State which is not the case in the present writ petition. Once petitioner has abandoned his service, relationship of master and servant comes to an end, Thus the petitioner cannot get any benefit from the plea that he was not given an opportunity of hearing.

In 2005 Supreme Court Cases (Labour and Service) 689, Vivekanand Sethi Vs. Chariman J. K. Bank Ltd and others, the Apex Court in the aforesaid case has held that principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straightjacket formula. It cannot be applied in a vacuume without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply.

Learned counsel for respondents submits that admittedly petitioner without any application and without any grant of leave has not joined the duty voluntarily, therefore, it will clearly be held that petitioner himself has abandoned his services and as such there was no requirement for any enquiry against petitioner. Further in spite of compromise he has not joined the services therefore, there cannot be any interference with the finding recorded by the labour court.

As regards, contention raised by petitioner that interim order was granted in his favour, therefore, he may be permitted to continue will not be applicable in the present case as it is well settled in law that final relief cannot be granted by way of interim relief.

Reliance has been placed upon a judgement of the Apex Court reported in 2001(9) Supreme Court Cases, 644 (State of U.P. and another Vs. Private Secretaries etc.), A.I.R. 2003 Supreme Court, 2218 (Union of India and others Vs. M/s Modiluft Ltd). 2005 (Supreme Court) 284, (State of U.P. and others Vs. Ram Sukhi Devi). Taking support of aforesaid judgement, learned counsel for petitioner submits that interim order passed by the High Court having the effect of actually allowing the writ petition, has been held that it is not proper.

Further submission has been submitted by learned counsel for respondent that merely because by interim order, petitioner was reinstated that cannot be a ground for allowing the writ petition.

Reliance has been placed upon a judgement reported in AIR 2006 Supreme Court, 3091, (State of Gujarat & others Vs. Dilipbhai Saligram Patil). (2000) 10 Supreme Court Cases, 311, (State of Haryana Vs. Suman Dutta), 2000 (10) Supreme Court Cases, 437, (Manager, State Bank of Hyderabad and others Vs. Puran) and 2000 (7) Supreme Court Cases 521, (Council For Indian School Certificate Examination Vs. Isha Mittal and another), the Apex Court has held that effect upon the final order comes to an end with the disposal of substantive proceeding. Merely because the interim order was granted and petitioner was reinstated that cannot be a ground for allowing the writ petition. It is the case of petitioner that as services were never terminated, neither he was dismissed or retrenched, if that is so, the case of petitioner does not fall within the ambit of Section (2)(A) of the U.P. Industrial Disputes Act, 1947. Therefore, reference itself is bad in law, as petitioner has himself abandoned his services of his own sweet will, as such, there was no occasion for the respondent to give an opportunity to petitioner or for compliance of the statutory provisions of Section 6N of the U.P. Industrial Disputes Act.

Respondent has placed reliance upon a judgement of this Court reported in 2005 ALJ, 732 Dinesh Kumar Singh Vs. Presiding Officer, Labour Court, Agra. This Court has held that abandonment of service by a workman on his sweet will, no question of affording any opportunity by employer and as such, no necessity of compliance of the provisions of Section 6N as there was no retrenchment /termination of services by employer.

In view of aforesaid fact, learned counsel for respondents submits that the present writ petition is liable to be dismissed.

After considering the submissions made on behalf of parties and after perusal of record, it appears that petitioner after 7.3.1998 has never come to the school. Petitioner has never tried to submit any application or document, which can show this proof that it was due to respondentemployer, petitioner was not permitted to join. It is admitted case of petitioner that he submitted representations under postal certificate. The respondents have denied that any application or representation was ever received. No document to this effect has been filed by petitioner to show that he wanted to join the service but has been declined by the employerrespondent. Further it has also been submitted by respondents that in spite of compromise, petitioner has not joined the services. Labour Court while considering that from perusal of para 5 of the compromise between the employer and the Union clearly goes to show that matter will be considered by the Manager of the school and Union after consultation. The compromise does not whisper that it is regarding termination of petitioner. Further finding has been recorded that burden was upon petitioner that petitioner has been terminated or has not been permitted by the employer to work after 7.3.1998. Apart from that, the attendance register was produced before the labour court, which shows that in the said attendance register after 6.3.1998, in each and every column, it has been mentioned ''A''. A finding has been recorded that in case employee himself does not turn up and absent without leave continuously then in that case, it will be treated that employee concerned has abandoned his service. The Apex Court in various cases has held that if a particular employee without any sanction of leave and information does not turn up and did not join the services, then it is not necessary to have any enquiry in the facts and circumstances of the case. If there is no order of termination or retrenchment then it will come under the definition of Section 2A of the Industrial Disputes Act. The labour court concluded that it is proved that services of petitioner were never terminated by employer and on the contrary the workman had himself abandoned his services, as such, he was not entitled for any payment or compensation as he has already been paid his wages up to the date he worked. In such situation, there cannot be any retrenchment or termination of services by the employer.

Petitioner has failed to proof from the record that he was a permanent employee in the respondent''s organisation. The findings of fact recorded by labour court are based upon the record submitted before him and after appreciation of evidence. In my opinion, it clearly appears that petitioner himself has abandoned his services. Therefore, labour court was justified and has rightly recorded such finding and dismissed the claim of petitioner. As regards, submission made by petitioner that by virtue of interim order, petitioner has been permitted to work, therefore, the writ petition be decided accordingly. Such contention of petitioner cannot be accepted in view of the Apex Court judgement mentioned above, the Apex Court has held that while deciding the controversy finally, the Court has to see the issue on merits. The interim order granted by Court will not effect the final relief and that cannot be a ground for allowing the writ petition.

In view of aforesaid fact, the writ petition is devoid of merits and is hereby dismissed.

No order as to costs.