SALORA INTERNATIONAL LTD Vs. SUSHIL KUMAR

JUDGEMENT

(1.) BY the present petition the Petitioner impugns the order dated 13th November, 2002 passed by the learned Labour Court holding that the enquiry conducted by the Petitioner was not fair and proper and the award dated 18th November, 2009 wherein in view of the order dated 13th November, 2002 it was held that the termination of the Respondent was illegal and non-est in the eyes of law and thus he was entitled to continuity in service without any break and to receive all consequential benefits.

(2.) LEARNED counsel for the Petitioner contends that the Respondent was transferred to Kashipur where he refused to join and thus it was a clear case of abandonment by the Respondent. Relying upon Inder Dev Yadav Vs. National Thermal Power Corporation 2002 LLR 361 it is contended that the employee cannot decide the place where he has to work and in case the employee does not join at the transferred place, the same amounts to abandonment of service. The abandonment not being a misconduct does not require an enquiry. The reliance of the learned Trial Court on DTC Vs. Shri Shishu Pal 2000 (85) FLR 431 is misconceived as the same is no more good law being based on the decision in D.K. Yadav Vs. JMA Industries Ltd. 1993 (67) FLR 111. D.K. Yadav (supra) came up for consideration before the Hon'ble Supreme Court in Syndicate Bank Vs. The General Secretary, Syndicate Bank Staff Association & Anr. 2000 LLR 689 and it was held that undue reliance on the principles of natural justice by the Tribunal and the High Court led to miscarriage of justice as far as the bank is concerned and in view of the conduct of the employee he was not entitled to any relief, yet the bank was directed to reinstate him with continuity of service. Relying upon Shri Gian Chand Vs. Secretary (Labour) Delhi Administration 1994 LLR 319 it is stated that failure of an employee to comply with the directions of the transfer did not amount to termination but abandonment and since the employee failed to perform the action as directed, the intention can be inferred from the act and conduct of the parties. Even in Inder Dev Yadav Vs. National Thermal Power Corporation 2002 LLR 361 it was held that if the employee failed to comply with the transfer order the name of the employee will be held to be rightly struck off from the rolls. In U.P.Singh Vs. Punjab National Bank 2011 LLR 708 it was held that if the employee fails to report to the Branch office as directed, the employer can draw an irresistible presumption of abandoning the job. It is the admitted case of the Respondent that vide letter dated 29th June, 1992 Ex.WW1/8 his services were terminated due to abandonment and an admitted fact is not required to be proved. Further the Respondent never challenged the transfer to Kashipur and thus he is now estopped from raising the issues which are beyond the terms of reference. Since the Delhi office of the Petitioner did not know about the abandonment letter dated 29th June, 1992 so during the conciliation proceedings the Respondent was asked to join the duties, however he did not report for duty and thus the intention of abandonment is clear. Where the workman does not join at the transferred place and does not challenge the transfer order, the same amounts to abandonment and no enquiry is required for the said purpose. Even if the Petitioner had vide letter dated 29 th June, 1992 terminated his services due to abandonment, in view of the offer of rejoining given during conciliation proceedings, the said letter would be deemed to have been recalled. On a charge-sheet being issued, the Respondent did not appear and thus enquiry could not have been held to be not fair and proper. The Respondent in the pleadings never proved that he was unemployed during the interregnum period and thus he was not entitled to back wages. Further once the Respondent was offered reinstatement during the pendency of conciliation proceedings which he declined, the learned Trial Court could not have directed reinstatement of the Respondent. Reliance is placed on Tej Pal Vs. Gopal Narain & Sons & Anr. 2006 LLR 1142. As held in ECP Ltd. (now Salora Internaitonal Ltd.) Vs. Shri Om Prakash Singh & P.O. Labour Court in W.P.(C) No. 2817/2006 decided by this Court on 28th September, 2007. Any relief granted to a workman who expressly refuses to answer the call of duty would amount to misplaced sympathy. Hence the impugned order and the award be set aside. Lastly it is contended that even if the finding of the Trial Court that the enquiry held was illegal is to be accepted, the learned Trial Court ought to have given the Petitioner an opportunity to adduce evidence to prove the misconduct before it as the Petitioner had already reserved the said right in the written statement.

(3.) I have heard learned counsel for the parties and perused the record. The Respondent was appointed as Wireman with the Petitioner on 14th February, 1983. He was transferred to the Kashipur unit of the company with effect from 23rd April 1992 through the letter dated 22nd April 1992. The Respondent did not report for duty at the Kashipur unit but sent a letter dated 29th April, 1992 which was replied by the Management vide letter dated 5th May, 1992 informing him the transfer to be legal and justified and On 29th June, 1992 the directed him to report for duties at Kashipur. Kashipur unit of the Petitioner informed the Respondent that since he has not reported for duty his lien on employment has been lost and it has been deemed that he has left his service himself. Along with the letter dated 29 th June, 1992 Ex.WW1/8 a cheque of Rs. 7418.90 paise clearing his account was also sent. The Respondent did not reply, however filed a civil suit against the order of transfer which was dismissed on 15 th January, 1994 as being not maintainable. The Respondent filed a claim before the conciliation officer on 15th April, 1994 wherein he stated that his services were terminated with effect from 23rd April, 1992. The Petitioner replied that his services were not terminated but he was transferred to Kashipur and the Respondent could still join the duties at Kashipur unit. On 7th September, 1994 a charge-sheet was issued to the Respondent for willfully flouting the transfer order dated 22nd April, 1992 by the management at Delhi unaware of the letter dated 29th June, 1992 sent by the Kashipur unit. In reply to the charge-sheet, the Respondent stated that he would not join the duties at Kashipur, however he should be taken back in the unit of the company at Delhi and paid full back wages. The Respondent did not join the enquiry and thus on an ex-parte enquiry being conducted, the enquiry officer held that the charges against the Respondent of not reporting at the transferred place and flouting the orders of the management were proved. A show cause notice was issued as to why he be not dismissed from service and finally on 28th September, 1995 the Respondent was dismissed from service. Since no conciliation took place, a reference was sent to the learned Labour Court on the following terms: