SALORA INTERNATIONAL Vs. SOMA PAUL

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. Learned counsel for the Petitioner contends that the Respondent was transferred to Kashipur where she 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. 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 any 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 7th July, 1992 Ex. WW1/8 her 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 she 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 7th July, 1992 so during the conciliation proceedings the Respondent was asked to join the duties, however she 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 7th July, 1992 terminated her 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 she was unemployed during the interregnum period and thus she was not entitled to back wages. Further once the Respondent was offered reinstatement during the pendency of conciliation proceedings which she 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 International 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.

(2.) LEARNED counsel for the Respondent contended that the Respondent was dismissed from service with effect from 28th September, 1995. It was not a case of abandonment but of dismissal pursuant to an enquiry. In the written statement filed by the Petitioner it is admitted that the Respondent was dismissed from service. Thereafter, learned counsel for the Respondent argued that her services were terminated not pursuant to an enquiry but in view of letter dated 7th July, 1992. Since the Respondent was taking contrary stands, the statement of the Respondent and the counsel was recorded by this Court vide order dated 11th December, 2012 wherein the Respondent clarified that she was not dismissed pursuant to the enquiry but pursuant to the letter dated 7th July, 1992. It is stated that the plea of abandonment was rejected by the Trial Court. There is no merit in the petition and the same be dismissed.

(3.) IN the claim statement filed, the respondent stated that she was appointed on 9th December, 1984 as a Wire -girl and her services were terminated on 20th June, 1992 in view of the transfer from Delhi unit to unit at Kashipur. On 16th March, 1991 the Respondent along with other workman asked for legal benefits and thus on 18th June, 1992 the Respondent was transferred all of a sudden to the Kashipur unit.