The Manager (Now Regional ... vs Amar Singh Sewara And The ...
2004 Latest Caselaw 761 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner has challenged an Award dated 30th July, 2002 passed by the Central Government Industrial Tribunal-cum-Labour Court in ID No. 29/2000.

2. Since the Respondent/workman was appearing in person, despite suggestions earlier given by this Court to take legal assistance from the Delhi High Court Legal Services Committee and because the Respondent/workman says that he is facing some financial difficulties, I decided to take up this matter for disposal out of turn.

3. The question that was referred for adjudication of the learned Tribunal is as follows:-

''Whether the action of the Manager, Reserve Bank of India, Parliament Street, New Delhi in treating Shri Amar Singh Sewara, Clerk Gr. II, as voluntarily vacated his service w.e.f. 9.9.1978, without enquiring into his medical fitness specially when he has been allowed and advised by the Bank to get medical treatment for his mental illness, is justified, valid and reasonable? If not to what relief and benefit the workman is entitled to?''

4. The Respondent/workman joined the services of the Petitioner on the basis of his merit in an All India competition as a Coin Note Examiner. The finding of fact recorded by the learned Tribunal is that he joined service on 10th May, 1978 and continued to work as such till 18th June, 1978, that is, for a period of about 40 days. Thereafter, he remained absent.

5. It seems that the Respondent/workman had fits of unconsciousness and was advised to take treatment till he recovered.

6. According to the Petitioner, since the Respondent/workman did not rejoin duties for quite some time, he was sent letters dated 26th June, 1978, 5th August, 1978 and 1st September, 1978 to report back for duty or send an appropriate application for leave. However, since no satisfactory steps were taken by the Respondent/workman, he was informed by a letter dated 26th September, 1978 that he is deemed to have voluntarily vacated his appointment with effect from 9th September, 1978 and that the period from 19th June, 1978 to 9th September, 1978 will be regularized by grant of extraordinary leave without pay and allowances.

7. On the other hand, the Respondent/workman says that he informed the Petitioner about his personal problem, including his illness and says that there was no justification for his employment being terminated or for the Petitioner to have concluded that the Respondent/workman had voluntarily vacated his employment.

8. After analyzing the evidence, the learned Tribunal has recorded a finding of fact that the Respondent/workman remained absent from 19th June, 1978 after having worked with the Petitioner for only 40 days. The absence was on account of his being mentally unwell for which he was getting treated.

9. After a lapse of about 18 or 19 years, that is, some time in June, 1997, the Respondent/workman submitted an application to the Petitioner saying that he is now medically fit and that he should be reinstated and allowed to continue his duties. Since his was not agreed to by the Petitioner, he raised an industrial dispute which came to be adjudicated upon by an Award dated 30th July, 2002 (impugned).

10. The learned Tribunal, by the impugned Award, held that since the Respondent/workman was unwell, his services should not have been terminated and, on the contrary, he should have been granted extraordinary leave without pay and other allowances under special circumstances for the period of his absence of 18 years. Accordingly, a direction was given to the Petitioner to treat the period of absence of the Respondent/ workman from 19th June, 1978 to 7th June, 1997 as extraordinary leave which should not be counted for any service benefits such as increment, promotion, gratuity, etc.

11. It is this conclusion and direction that has been assailed by the Petitioner by filing a writ petition under Article 226 of the Constitution.

12. Learned counsel for the Petitioner submitted that this is a clear case of abandonment of service. By no stretch of imagination can any employee be permitted to remain absent for 18 or 19 years and yet be held not to have abandoned his services.

13. At the outset, it must be stated that the findings of fact arrived at by the learned Tribunal are unassailable and any decision in this case must proceed on the basis that the Respondent/workman worked for only 40 days with the Petitioner and thereafter he remained absent for about 18 or 19 years despite being asked by the Petitioner to report back for duty or to furnish an appropriate application for leave.

14. In the leading case of G.T. Lad vs. Chemical and Fibers of India Ltd., , the Supreme Court has explained the meaning of abandonment of service, which is to abandon and relinquish office on a permanent basis, meaning thereby that temporary absence is not ordinarily sufficient to constitute abandonment of office. The intention of the parties can be inferred from their acts and conduct.

15. One of the factors that is required to be taken into consideration in this regard, as held in Buckingham and Carnatic Co. Ltd. vs. Venkatiah, , is the length of absence from service and the surrounding circumstances which may lead to an inference one way or the other.

16. Applying the law laid down by the Supreme Court to the present case, it is clear that the absence of the Respondent/workman for as long as 18 or 19 years without due intimation to the Petitioner would clearly fall within the category of abandonment of service. While it is true that the absence may have been occasioned by the illness of the Respondent/workman, but there is no evidence on record to suggest that the circumstances were such that the Respondent/workman or anyone in his family could not intimate to the Petitioner the precise reasons for the absence of the Respondent/workman or even submit an appropriate application for leave. The period of 18 years silence is far too long to be taken lightly and seeing the length of time, it is not possible to reach any conclusion other than the conclusion that the Respondent/workman had abandoned service.

17. Due to the length of time involved, it is futile to consider whether the Respondent/workman had intended to permanently abandon his job or not. Absence of a few months can, of course, be explained but certainly not absence of 18 years and that too with complete silence on the part of the Respondent/workman. I do not think it is possible to assume, let alone conclude, that the absence of the Respondent/workman was temporary and not permanent.

18. This being the position as I understand it, it is not possible to uphold the Award rendered by the learned Tribunal. It is, therefore, required to be set aside and it is ordered accordingly.

19. It may be mentioned that on 17th December, 2002, an order was passed in CM 13829/2002 staying the operation of the impugned Award. The Respondent/workman moved an application for vacating the interim stay but this application was dismissed on 7th May, 2003.

20. On 8th August, 2003, the interim stay earlier granted was confirmed by this Court. Even though the Respondent/workman did not move any application under Section 17-B of the Industrial Disputes Act, 1947 (the Act), an order was passed on 8th August, 2003 directing the Petitioner to pay wages to the Respondent/workman under Section 17-B of the Act. This was on the basis of the affidavit filed by the Respondent/workman in support of his application for vacation of stay wherein he had stated that he has not been employed in any other establishment except the Reserve Bank of India. On that day, it was represented by the Petitioner that the emoluments of the Reserve Bank of India are well beyond the minimum wages and, therefore, the question of payment of minimum wages to the Respondent/workman does not arise. It was directed that arrears from the date of the Award up to date (8th August, 2003) shall be paid to the Respondent/workman within four weeks.

21. The Respondent/workman thereafter filed CM (RA) No. 10070/2003 for a review of the order dated 8th August, 2003. It was brought to his notice by this Court that the order of 8th August, 2003 was actually in his favor and in fact granted relief to him and that it would not serve his purpose if the said order is stayed. However, it transpires from the order sheet that the Respondent/workman did not realise the implication of the order dated 8th August, 2003 and, accordingly, this application was deferred for hearing and disposal along with the main writ petition. It seems to me that the order dated 8th August, 2003 is in favor of the Respondent/workman subject to quantification of the amount due to him under Section 17-B of the Act.

22. The Respondent/workman filed another application being CM No. 2282/2004 seeking vacation of the ex parte interim order passed on 17th December, 2002. This application requires to be dismissed because the interim order has already been confirmed and an earlier application for vacation of stay has already been dismissed. Accordingly, this application is dismissed.

23. As regards quantification of the amount due to the Petitioner under Section 17B of the Act, I find from the record of the case that when the matter was taken up on a couple of dates, the Petitioner paid to the Respondent/workman a sum of Rs.646.40 per month as his wages under Section 17-B of the Act.

24. It appears to me that this amount is far too low and I would, therefore, while disposing of CM (RA) No. 10070/2003 direct the Petitioner to determine the minimum wages due to the Respondent/workman for the post that he was holding (Coin Note Examiner) The minimum wages due to the Respondent/workman for the period from the date of the impugned Award, that is, 30th July, 2002 until today should be paid to him within four weeks. This is in consonance with several decisions of this Court and I would expect the Petitioner to follow these decisions. CM (RA) No. 10070/2003 is partly allowed.

25. Under the circumstances, while allowing this writ petition and setting aside the impugned Award, I issue the following directions:-

(a) The Petitioner will determine the minimum wages due to the Respondent/workman for the post of Coin Note Examiner on the date of the Award until today and to pay the same to him within a period of four weeks from today. I expect the Petitioner to act fairly and consistently with the legal position as enunciated by this Court from time to time. This order is being passed under Section 17-B of the Act.

(b) The Registry will send to the Respondent/workman a certified copy of today's decision free of cost at the address given in the memo of parties as well as at the address given by the Respondent/workman in the affidavits filed by him. This direction should be carried out by the Registry immediately.

(c) The Registry will also intimate to the Respondent/ workman that in case he is dissatisfied with the decision rendered today, he is entitled to file a Letters Patent Appeal under Clause X of the Letters Patent within thirty days of the receipt of this order and that he is entitled to apply for legal assistance in this regard from the Delhi Legal Services Authority and/or the Delhi High Court Legal Services Committee.

26. CWP No. 8124/2002, CM No.2282/2004 and CM (RA) No. 10070/2003 are disposed of as indicated above.