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2006 DIGILAW 1462 (DEL)

SHRI TEJ PAL GIRVER SINGH v. GOPAL NARAIN AND SONS

2006-08-28

SHIV NARAYAN DHINGRA

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SHIV NARAYAN DHINGRA, J. ( 1 ) BY this writ petition, the petitioner has challenged the legality of Award dated 6. 10. 2003. ( 2 ) BRIEF facts are that the petitioner raised following industrial dispute which was referred for adjudication to the Labour Court:-Whether the services of Sh. Tej Pal have been terminated illegally and/or unjustifiable by the management, and if so, to what relief is he entitled and what directions are necessary in this respect. ( 3 ) THE Tribunal came to the conclusion that the workman has failed to establish that he had worked for 240 days with the management to qualify for benefit under section 25 (F) of the Industrial Disputes Act 1947 ( for short 'the Act" ). The Tribunal also observed that when management requested the petitioner to join duties vide letter dated 8. 10. 99, the workman instead of joining duties persisted with the allegation that his services were terminated illegally and did not join duty. The workman had abandoned his services. ( 4 ) PETITIONER has challenged the order on the ground that the order was perverse and illegal. Management was supposed to conduct an enquiry even if there was abandonment of services by the petitioner. The Labour Court went wrong in not believing the un-rebutted evidence of the petitioner given by way of affidavit. The order of the Labour Court was therefore bad in law. ( 5 ) A perusal of the Award shows that management was proceeded ex parte. The petitioner in support of his claim, that his services were illegally terminated, filed an affidavit in evidence. He placed on record nine documents. Two documents were letters written by the petitioner to the Labour Office and one from management to the workman. Other documents were receipts. The letter dated 8. 10. 99 was issued by the management to the petitioner. In this letter management had written to the workman that he was absenting from duties and should join duties within 7 days, as he had left without intimation. Instead of joining duties with the management, petitioner replied vide his letter 25. 10. 1999 stating that he was not absent without permission. He did not join duties despite writing this letter,. ( 6 ) SECTION 25f of " The Industrial Disputes Act, 1947'" reads as under:-"25f. Instead of joining duties with the management, petitioner replied vide his letter 25. 10. 1999 stating that he was not absent without permission. He did not join duties despite writing this letter,. ( 6 ) SECTION 25f of " The Industrial Disputes Act, 1947'" reads as under:-"25f. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay ( for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the Official Gazette)The retrenchment as envisaged under section 25f is defined under section 2 (oo)of the Industrial Disputes Act, which reads as under:- (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 the stipulation in that behalf contained therein or) (c) termination of the service of a workman on the ground of continued ill-health. ( 7 ) A perusal of Section 2 (oo) of the Act shows retrenchment means the termination of services of a workman by management. Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman were terminated. ( 7 ) A perusal of Section 2 (oo) of the Act shows retrenchment means the termination of services of a workman by management. Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman were terminated. It was not the case of the workman before the Labour Court that after receiving letter of the management asking him to join duties, he had gone to join duties and was not allowed to join duties. The contention of the workman that employer was supposed to initiate an enquiry into his absence before terminating his services, is baseless because in this case employer had not terminated services. An employer who writes a letter to the workman to join duties since he was absent, cannot be said to have terminated the services of the petitioner. Only if the petitioner had not been allowed to join duties on his reporting, it could have been said that his services were terminated. ( 8 ) THE petitioner had served a demand notice dated 24/9/1999 on the employer asking to reinstate him alleging that his services had been terminated. The employer asked to join duties vide letter dated 8/10/1999 as his services were not terminated. It is obvious that this letter was written to him after receipt of his demand notice. Even if it is considered that he was allegedly terminated from services since his demand of reinstatement was acceded to by the management no industrial dispute regarding termination could be said to have arisen. The dispute could be said to have arisen only if the employee had gone to join services and was not allowed to join duties. Employee did not go to join despite offer of the management asking him to join services, therefore, he could not have raised any dispute against management about termination of his service. I find no merits in the writ petition. Accordingly, the same is hereby dismissed.