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2023 DIGILAW 1135 (ALL)

Tech Mahindra Ltd. v. Presiding Officer

2023-04-25

ALOK MATHUR

body2023
JUDGMENT : Alok Mathur, J. 1. Heard Sri M. S. Vinayak, learned counsel for the petitioner, Sri Karunanidhi Yadav as well as learned Standing counsel for respondent no. s 1 and 2, Sri Shekhar Srivastava for respondent No.3-workman. 2. By means of the present writ petition the petitioner has assailed the award dated 24.11.2022 passed by Presiding Officer, Labour Court, Noida, District Gautam Buddha Nagar, U.P. whereby allowing the claim of respondent No.3-workman. 3. The facts in brief arising in the present case are that respondent No.3 was employed on the post of Assistant in Grade GO at the establishment of the petitioner company at Pune, Maharashtra and was issued appointment letter on 30.3.2004. As per the appointment letter he was to work in Noida and it was further provided that the services of respondent NO.3 would be terminated by either party by serving prior written notice. It was further provided in the appointment letter that the services of the respondent-workman would be transferable and he could be transferred to any of the establishments of the petitioner whether in India or abroad. The petitioner continued to work since the date of his appointment till 5.12.2008 when his services were transferred to Chennai Branch of the petitioner. He was asked to join at Chennai by 11.12.2008. Respondent No.3 did not join at Chennai and according to the petitioner he had remained absent unauthorisedly. He was asked by means of letter dated 15.12.2008 as well as 22.12.2009 to join at Chennai failing which it will be assumed that he is not interested in continuing with his services and his services will be dispensed with. Despite the fact that the respondent did not join at Chennai an order of termination was passed on 2.1.2009. As per the order of 2nd January, 2009 issued by Group Manager, Human Resources it was stated that ample opportunity was given to the respondent to report at Chennai office but he has neither reported nor made any communication and, therefore, his services are terminated with immediate effect. 4. As per the order of 2nd January, 2009 issued by Group Manager, Human Resources it was stated that ample opportunity was given to the respondent to report at Chennai office but he has neither reported nor made any communication and, therefore, his services are terminated with immediate effect. 4. Respondent No.3 being aggrieved by the termination order dated 2nd January, 2009 raised an industrial dispute before Labour Court, Noida, which was duly referred and according to the reference it was stated that respondent No.3 was working on the post of driver and his services have been terminated with effect from 2nd January, 2009 and the labour court was called upon to test the validity of the termination order. Notices were issued to the petitioner who appeared and opposed the claim of the respondent. In the written submissions filed before the Labour Court it was stated that the respondent was appointed on 30.3.2004 and was transferred to Chennai office vide order dated 5.12.2008 he was supposed to report by 11th December, 2008 but he did not report to the said office. It is further stated that by not joining at Chennai office the respondent had violated the company's disciplinary policy. Even previously on a number of occasions he has also been given warning letters to join his duties and he has also absented himself from 5.12.2008 without prior intimation to the petitioner's Manager. It was further stated that as per the company policy the petitioner, in fact, had paid final amount to the petitioner. It was further stated that termination of the respondent was legal as per the company policy. 5. The Labour Court after considering the said response as well as the evidence adduced by the workman as well as by the petitioner had allowed the claim of the workman and while allowing the said claim the Labour Court has recorded that the workman was appointed with petitioner organization since 30.3.2004 on daily wages of Rs.11261/- per month. It has further been stated that allegations were levelled by the workman that the petitioner has not given him due wages and he has been asked to work for more than the normal working hours and even the wages for the overtime were due to the respondent also not paid to him. It has further been stated that allegations were levelled by the workman that the petitioner has not given him due wages and he has been asked to work for more than the normal working hours and even the wages for the overtime were due to the respondent also not paid to him. It was further stated that in the claim, that no notice or opportunity of hearing was given to the workman prior to termination of his services. It was also averred that the respondents was a permanent employee and raised his demands by writing several letters to the petitioner none of which was responded to and consequently after termination of services, having no other remedy, had approached the Labour Court raising his grievances. 6. Learned Labour court has also considered the arguments of the petitioner with regard to the fact that the respondent had been transferred to Chennai office vide order dated 5.12.2008 and was required to join by 11.12.2008 but the respondent-workman did not comply with the order of transfer and several warning letters were also given to him for joining which also were not obeyed by him and consequently it was concluded that the respondent is not willing to work with the petitioner company and also considering the fact that during this period he did not make request for leave it was concluded that he is not interested in his employment and has, in fact, abandoned the same. After coming to the conclusion that the workman has abandoned his services his dues were duly calculated and paid on 2.1.2009 treating him to have resigned on 16.12.2008. 7. Before the Labour Court the respondent/workman had examined himself supporting his claim while on behalf of the petitioner one Mr. Mukul Sah of the company was duly examined. The Labour Court was persuaded by the fact that admittedly no charge sheet was supplied nor any disciplinary inquiry conducted prior to termination of his services which is in gross violation of the principles of natural justice which was mandatory before terminating his services. It is on the aforesaid premises that the labour court has allowed the claim of the respondent -workman and directed the petitioner to allow claim of the workman within two months and reinstate the workmen in service with full back wages and other benefits to which he is entitled. 8. It is on the aforesaid premises that the labour court has allowed the claim of the respondent -workman and directed the petitioner to allow claim of the workman within two months and reinstate the workmen in service with full back wages and other benefits to which he is entitled. 8. The first ground which falls for consideration of this Court is as to whether in the facts and circumstances of the present case the respondent workman had abandoned his services and also whether the petitioner was justified in terminating the same. Learned counsel for the petitioner, while assailing the said award has submitted that the said award is illegal and arbitrary in as much as the contentions of the petitioner were not considered by the labour court in its true perspective. He has submitted that once it has come on record that the respondent workman did not join in pursuance of the order of transfer and had absented himself without any leave then it was deemed that he would have abandoned his services and they were fully competent and it was within their jurisdiction to terminate the services of the respondent workman. In support of his submissions learned counsel for the petitioner has relied upon series of judgments. The first is the case of Punjab and Sindh Bank and others Vs. Sakattar Singh, (2001) 1 Supreme Court Cases 214 as well as Regional Manager, Bank of Baroda Vs. Anita Nandrajog, 2009 (9) SCC 462 . In both these matters where the workman had remained unauthorized absent and did not report for duty within thirty days as per the conditions contained in clause XVI of IV of the bipartite settlement, their services were terminated and the said termination was upheld by the Supreme Court relying upon the bipartite settlement entered into between the workers union and the bank. 9. Learned counsel for the respondents has opposed the contention of the petitioner. He submits that it is settled principles of law that in case the services of the workman is required to be terminated then statutory provisions contained in Section 6N and 6(P) of the Industrial Disputed Act, 1947 have to be followed. According to Section 6N it is clearly provided that either one month's notice has to be given in writing citing the reasons for retrenchment and wages in lieu of the notice have to be granted. According to Section 6N it is clearly provided that either one month's notice has to be given in writing citing the reasons for retrenchment and wages in lieu of the notice have to be granted. The reasons for termination are stated in the order of termination according to which the petitioner did not join in pursuance of this transfer and consequently his services were terminated. Admittedly no domestic inquiry was conducted by the petitioner, nor any show cause notice was given to the workman prior to termination of his service. The notice which was given by the petitioner to the respondent -workman on 15.12.2008 or 22.12.2008 cannot be held to be a notice given during the domestic inquiry. They were only the notices requiring him to join at Chennai. 10. Considering the submissions made by the petitioner that they were justified in terminating the services on the ground of abandonment of service, it is noticed that the respondent workman stopped reporting for work from the date of his transfer i.e 05/12/2008. The petitioner had sent 2 notices on 15/12/2008 and on 22/12/2008, but he still did not report for work and consequently by order dated 02/01/2009 the order of termination was passed. It is noticed that the respondent workman did not report for work for nearly 3 weeks, when the order of termination was passed. It is further noticed that there is difference between absent from duty and abandonment of service. The claim entitlement for terminating the services of the employee on the grounds of an abandonment of service, it has to be proved that the services have been abandoned by the workman, for which there should be evidence on record indicating the same. Mere absence from duty for a few days or nearly 3 weeks as in the present case cannot be held to be abandonment of service. 11. The petitioner has relied upon the judgement of the Supreme Court in the case of Punjab and Sindh Bank and others Vs. Sakattar Singh, (2001) 1 Supreme Court Cases 214 as well as Regional Manager, Bank of Baroda Vs. Anita Nandrajog, 2009 (9) SCC 462 . 11. The petitioner has relied upon the judgement of the Supreme Court in the case of Punjab and Sindh Bank and others Vs. Sakattar Singh, (2001) 1 Supreme Court Cases 214 as well as Regional Manager, Bank of Baroda Vs. Anita Nandrajog, 2009 (9) SCC 462 . In both these matters where the workman had remained unauthorized absent and did not report for duty within thirty days as per the conditions contained in clause XVI of IV of the bipartite settlement, their services were terminated and the said termination was upheld by the Supreme Court relying upon the bipartite settlement entered into between the workers union and the bank. In the said case Supreme Court was amplifying the agreement of bipartite settlement where there was specific stipulation with regard to termination of services of the workman who absented himself from the duty beyond a particular period which were also prescribed within bipartite settlement and accordingly the orders of the bank for termination of services of the employee who absent themselves for more than the prescribed period in the bipartite agreement was upheld by the Supreme Court. 12. I have gone through the aforesaid judgments and am of the considered opinion that the said decision are clearly distinguishable from the facts of the present case where no such stipulation or contract exists between the workman and the petitioner where it is provided that in case he absents himself more than a particular period he will be deemed to have abandoned his services and it shall be open for the employer to terminate his services. 13. Learned counsel for the petitioner has further relied upon the judgment of a coordinate Bench of this Court in the case of Dinesh Kumar Singh Vs. Presiding Officer, Labour Court, Agra reported in 2005 ALL LJ 732. In the said case the employer had stated that he had never terminated the services of the workman who had, in fact had himself abandoned his service. Even in the said case labour court has also given a categorical finding that the petitioner therein had abandoned his services and the services had never been terminated and, hence it was concluded that there was no retrenchment of the services of the workman. The said case is distinguishable on facts as in the present case the order of termination has been passed by the petitioner on 02.01.2009. The said case is distinguishable on facts as in the present case the order of termination has been passed by the petitioner on 02.01.2009. The said letter is titled as order of termination it has been clearly stated that the service of the petitioner stand terminated. Once an order of termination has being passed, it’s validity would be looked into by the Labour court, and in the present case, the labour court has concluded that the order of termination is illegal and arbitrary as no opportunity of hearing or any domestic enquiry held prior to passing of the said order. 14. I find force in the contention made on behalf of the respondent that even if it was assumed that the workman had abandoned his services it was mandatory for the petitioner to have conducted a domestic inquiry before terminating his services. Even abandonment of service is disputed question of fact which is to be proved, which could have been done in a domestic inquiry could have been conducted by the petitioner. In support of his submissions in this regard he has relied upon the judgment of this Court in the case of Shri Karan Singh Vs. Presiding Officer, Labour Court and another, passed in Writ C No.39842 of 2019. Prior to termination of services of a workman the minimum mandatory requirement is to inform him of the charges by issuing charge sheet followed by domestic inquiry where the workmen has an opportunity to present his justification against the charges levelled against him. It is only after sufficient opportunity is given to the workman can his services be terminated. The action taken by the petitioner in terminating the services of the respondent in absence of such an enquiry and without granting any opportunity of hearing is illegal and arbitrary and in violation of principles of natural justice as rightly held by the labour court, and consequently, there is no infirmity in the impugned order. 15. Learned counsel for the petitioner has also assailed the award on the ground that the same is barred by principle of latches inasmuch as the proceedings were initiated before the labour court after a period of 4 years from the date when his services were terminated. 15. Learned counsel for the petitioner has also assailed the award on the ground that the same is barred by principle of latches inasmuch as the proceedings were initiated before the labour court after a period of 4 years from the date when his services were terminated. We have considered the objections raised by the petitioner opposing the claim preferred by the respondent workman and find that no ground regarding delay and latches was raised by the petitioner before the labour court, and hence the labour court did not have an opportunity to examine the said contention. Even before this Court in the instant writ petition there is no ground of latches raised by the petitioner in assailing the award of the labour court, and therefore there is no occasion for this Court to examine the contention raised by the petitioner inasmuch as the same was not taken before the labour court, nor is there any pleading in this regard in the present writ petition to examine the same. The power exercised by this Court under Article 226 of the Constitution of India, while judicially reviewing the order of labour court, is limited to the examining the procedural impropriety or an error apparent on the face. It is also settled proposition of law is that the power of judicial review under article 226 is not against the decision but the decision-making process. The petitioners not having raised the plea of latches before the labour court and before this Court as well as there being no pleadings or grounds raised by the petitioner in the present writ petition, precludes this Court from adjudicating the said issue. Accordingly, the arguments of the petitioner in this regard are rejected. 16. Lastly, it is submitted by learned counsel for the petitioner that the matter has been settled between the petitioner and the respondent workman inasmuch as a full and final settlement of the dispute has been arrived at between the petitioner and the respondents, hence, the writ petition deserves to be allowed. In support of his submissions, he relied upon the document titled as “full and final settlement” annexed with the writ petition. A perusal of the said document indicates that an amount of 18,763/- is due to the respondent workman, which includes various service benefits including conveyance allowance, house rent allowance personal allowance etc. In support of his submissions, he relied upon the document titled as “full and final settlement” annexed with the writ petition. A perusal of the said document indicates that an amount of 18,763/- is due to the respondent workman, which includes various service benefits including conveyance allowance, house rent allowance personal allowance etc. there is no proof whether it has actually been paid to the respondent workman or not. The said documents also contains a receipt but the same is unsigned, which clearly indicates the same has not been accepted by the respondent workman, or it was never tendered by the petitioner to the workmen. It is further noticed that in the objections filed by the petitioner before the labour court in paragraph No. 10 stated that:- “Further, as per policy of the company if so Respondent company had prepared applicant’s full & final settlement and given outstanding full & final amount to the applicant “. 17. There is clearly a variation in the stand of the petitioner before the labour court and before this Court. Before the labour court there was no mention that the full and final settlement has been accepted by the respondent workman, and in paragraph 21 of the instant writ petition it has been stated that the workman has signed a voucher in due acceptance of his dues on 14/01/2009. The document Annexed in support of the said averments does not include any signed document by the respondent rather an unsigned document has been annexed. Clearly, from the above it was not expected from the petitioner to make false assertions before this Court. In case the respondent had in fact signed the said full & final settlement the same should have been produced before the labour Court as well as this Court. Before the labour court it was never stated that the workmen had accepted the full and final settlement, and this changed stand before this Court, clearly appears to be an afterthought and contrary to the material on record, and not worthy of being considered in favour of petitioner. In absence of acceptance of the said settlement by the workman it cannot be considered to be an agreement or a settlement. The arguments of the petitioner in this regard also rejected. 18. In light of the above, the writ petition is bereft of merits and is accordingly dismissed.