Sundaresan vs The Deputy Commissioner of Labour (Appeal)

D. Murugesan, J.—The petitioner has questioned the impugned order of the Appellate Authority under the Tamil Nadu Shops and

Establishments Act, 1947 dated 26.2.96 made in T.S.E. No. 17 of 1995 holding that the petitioner had abandoned the service from 4.4.95 and

the claim of the petitioner that he had been terminated from service cannot be accepted.

It is the case of the petitioner that nearly 20 workers were employed in the second respondent Cinema Theatre. The workers were denied their

leave facilities, over time facilities and even the minimum wages guaranteed under the Minimum Wages Act. In order to secure those facilities, the

petitioner and other workers joined the Madras Cinema Theatre Employees Union and made a complaint to the Inspector of Labour. The

Assistant Inspector of Labour inspected the cinema theatre on 21.4.95 and obtained statement from the workers. Aggrieved by the above act of

the petitioner, the petitioner was orally terminated from service on 22.4.1995. There were no charges framed, no enquiry conducted before the

termination of the petitioner. Contending that the oral termination was contrary to the provisions of Section 41(i) of the Tamil Nadu Shops and

Establishments Act, 1947, the petitioner filed an appeal before the first respondent questioning the termination. The said appeal was rejected by

the impugned order. Hence, the petitioner is before this Court.

Mr. K.M. Ramesh, learned counsel for the petitioner would reiterate the above facts by contending that the Assistant Inspector of Labour

inspected the cinema theatre on 21.4.95 and obtained the statement from the workers on a complaint from the petitioner and other workers.

Hence, the petitioner has been penalized by way of oral termination immediately on the next day. He would rely upon a series of judgment to

contend that the termination of the petitioner without there being any enquiry is illegal.

There is absolutely no quarrel about the said proposition of law that before any termination is made, the delinquent should have been charged for

specific misconduct and enquiry ought to have been conducted on the same. A detailed procedure for the conduct of enquiry should be also

followed by giving show cause notice proposing the penalty and pass final orders only after the explanations are received. However, that depends

upon the facts of each case.

It is the specific stand of the second respondent that there was no oral termination and the petitioner has voluntarily abandoned the service even

from 4.4.95 and in that event, question of oral termination on 22.4.95 does not arise. In this context, it must be noted as to whether the petitioner

absented himself for duty from 4.4.95 or he was orally terminated while he was in service. Ex.A-1 is a complaint dated 22.3.95 given to the

Labour Welfare Officer by the Secretary, Madras Cinema Theatre Employees'' Union on behalf of the workers of the second respondent theatre

alleging non payment of leave facilities, overtime facilities and non payment of minimum wages. Ex.A-2 is a similar complaint given to the

Employees Provident Fund Commissioner on the same day. Ex.A-3 is a letter addressed by the petitioner to the second respondent theatre on

26.4.95. In the said letter, he claimed that though he attended for duty on the said date, he was refused permission to join duty. Ex.A-5 is another

letter dated 12.5.95 in this regard. Placing reliance on these exhibits Mr. K.M. Ramesh, learned counsel for the petitioner submitted that though the

petitioner reported for duty on 22.4.95, he was denied employment. On the contrary, placing reliance on Ex.A-4, Mr. A.R. Gokulnath, learned

counsel for the second respondent submitted that on 6.5.95 the petitioner was informed that he absented for duty for nearly one month and was

directed to join duty within a period of seven days. The said letter was acknowledged by the petitioner on 6.5.95. He would draw my attention to

paragraph 5 of the counter affidavit filed before the appellate authority wherein it is stated that the petitioner while in employment with the second

respondent was also working in Barani Theatre. When the second respondent came to know of the same, the petitioner was advised not to do so.

This happened on 3.4.95. From the next day onwards, the petitioner did not report for duty. A notice dated 6.5.95 was sent to the petitioner.

Nevertheless, the petitioner did not report for work except a reply dated 12.5.95. Therefore, the contention of the petitioner that he was orally

terminated from service on 22.4.95 is not correct as the petitioner did not report for duty and abandoned the service from 3.4.95.

On the above submissions, the only question that arises for consideration is as to whether the petitioner had abandoned the service from 4.4.95

or whether his services were orally terminated on 22.4.95. The receipt of Ex.A-4 by the petitioner is not disputed. By the said letter the petitioner

was called upon to join duty within a period of seven days as he absented from duty for nearly one month. For this letter the petitioner had only

submitted an explanation in Ex.A-5, but did not report for duty within a period of seven days. It is not in dispute that Ex.A-4 dated 6.5.95 was

issued by the second respondent after the receipt of Ex.A-3 dated 26.4.95 written by the petitioner. In Ex.A-3, the petitioner had specifically

stated that when he reported for duty on the said date, he was denied work. There is no reference to the Ex.A-3 in Ex.A-4. In fact in Ex.A-5

dated 12.5.95 the petitioner had once again reiterated his stand that he was denied work when he reported for duty on 22.4.95. He also denied

the fact that he absented himself for duty for more than one month. The appellate Authority has simply relied upon Ex.A-4 coupled with the

evidence of R.W.1 to hold that even after Ex.A-4, the petitioner did not join duty and hence it must be held that he voluntarily abandoned from

service. Merely because the second respondent had informed the petitioner of abandonment of service, it must be held that the petitioner had

abandoned the service. The Appellate Authority had lost sight of Exs.A-3 and A-5 to sustain the claim of the petitioner as to the oral termination

and also failure on the part of the second respondent refer Ex.A-3 in Ex.A-4. In the absence of any reference to Ex.A-3, Ex.A-4 itself is doubtful

more particularly, when the petitioner has clearly denied the same in the reply marked as Ex.A-5. Though in the counter before the Appellate

Authority, the second respondent has taken the stand that the petitioner also worked in Bharani Theatre while he was working in the second

respondent theatre and hence he was warned on the ground and that he did not attend duty on and from 4.4.95, there is absolutely no evidence let

in on behalf of the second respondent to prove the same before the Appellate Authority. In the absence of the same and coupled with the fact that

there was no reference to Ex.A-3 in Ex.A-4, the finding of the Labour Court that the petitioner had abandoned the service is not on acceptable

evidence.

What is abandonment of service was considered by the Apex Court in the case of G. T. Lad and Others Vs. Chemical and Fibres of India Ltd.,

and the relevant paragraph reads as under:

Three question arise for consideration in this case, namely:

(1) What is the true meaning of the expression abandonment of service;

(2) Whether in the circumstances of the case it could be said that the appellants had voluntarily abandoned the service of the company; and

(3) Whether the action of the company in removing the names of the appellants from its rolls on the presumption that they had abandoned service

would constitute a change in the conditions of service of the appellants ?

We will deal with these questions seriatim. 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 as abandonment of service.

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 The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, , 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.

A learned single judge of this Court in The Management of Hackbridge Hewitte and Easun Ltd., Tiruvottiyur, Madras, rep. by its Chairman and

Managing Director v. The Presiding Officer, First Additional Labour Court, Madras and Anr. 1984 W.L.R. 58, while considering the words

abandonment of service"" has held as follows:

Abandonment with regard to service matters is not a naive conception. It is of a much serious consequence because on this basis the relationship

of master and servant is sought to be snapped.

G.T. Lad v. Chemicals & Fibres India Ltd. 1979 L.I.C.290 (S.C.);

Dictionary of English Law by Earl Jowitt, 1959 edition;

Black''s Law Dictionary,

The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, , Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others,

and Express Newspapers (P) Ltd. Vs. Michael Mark and Another, , referred to.

Abandonment must be total and under such circumstances which clearly indicate that the workmen wanted to snap the relationship of master and

servant and relinquish the service in question. A temporary failure to perform the duties pertaining to the office in question may not suffice the

concept of abandonment of service. There must be actual or imputed intention on the part of the workmen to abandon and relinquish their service.

This is purely a matter of intention and this intention must not only be attributed to the workmen by the management, who must specifically plead

the same, but must also be substantiated by adequate evidence in that behalf. The workmen may indulge in very many annoying, tacktics. The

workmen may go on strike. It may also include a stay-in-strike. This conduct on the part of the workmen can be reprehensible from the point of

view of the management. But these factors would not go to constitute an abandonment of service on the part of the workmen. These acts and

omissions on the part of the workmen may fall within the category of weapons in their hands to enforce their demands. The Supreme Court in the

case referred to above, after pointing out its earlier pronouncements, has held that the absence of the employees from work because of strike in

enforcement of their demands, will not lead to an inference of abandonment of employment by them. Merely because the workmen had no

intention to gain entry and indulge in stay-in-strike, it is not possible to assume that the workmen abandoned their service or, on that basis, the

management could not refuse employment to the workmen when they demand it. The conduct of the workmen could be a matter for disciplinary

action. But that cannot be put forth as an answer to the demand for employment ?

In this case, considering the Exs. A-3 and A-5, I find that there was no intention on the part of the petitioner to abandon service. Such intention

cannot be also attributed to the petitioner in the absence of adequate evidence in this behalf. As has been held by the Apex Court, voluntary

abandonment of service is a question of fact that has to be determined in the light of the surrounding circumstances of each case. The Appellate

Authority has erred in solely relying upon Ex.A-4 for abandonment of service. As already noted, Ex.A-4 was dated 6.5.95 much after Ex.A-3 was

received by the second respondent, and there is absolutely no reference to Ex.A-3 in Ex.A-4. A combined reading of Exs.A-3 and A-5 does not

disclose any intention on the part of the petitioner for abandoning the service. Hence, I find that the impugned order of the Appellate Authority in

holding that the petitioner had voluntarily abandoned the service from 4.4.95 cannot be sustained and accordingly the said finding is liable to be set

aside.

Once the defence of abandonment of service is rejected by this Court, the next question arises as to whether the petitioner could be terminated

from service without there being any enquiry. Section 41 of the Tamil Nadu Shops and Establishments Act, 1947 reads as under:

(i) No employer shall dispense with the service of a person employed continuously for a period of not less than six months except for a reasonable

cause and without giving such person at least one month''s notice or wages in lieu of such notice, and provided however that such notice shall not

be necessary where the services of such persons are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an

enquiry held for the purpose"".

However, in this case, the proviso is not applicable as the petitioner was denied employment without there being any enquiry conducted. The

petitioner was also denied employment without any reasonable cause and without giving at least one month''s notice or wages in lieu of such notice.

In the absence of such compliance, the termination of the petitioner is contrary to the provisions of Section 41 of the said Act. Hence, the oral

termination of the petitioner is also unsustainable.

For all the above reasons, the impugned order of the first respondent Appellate Authority is set aside and the consequent termination of the

petitioner is also held unsustainable. Accordingly, the writ petition is allowed and the petitioner is entitled to reinstatement with back wages and

other attendant benefits. No costs.