Sukhdev Singh vs Delhi Development Authority
2011 Latest Caselaw 5378 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 8th November, 2011
+                                  LPA 913/2011

         SUKHDEV SINGH                                     ..... Appellant
                     Through:             Mr. Anil Mittal & Mr. Amritansh
                                          Batheja, Advs.

                                     Versus

   DELHI DEVELOPMENT AUTHORITY             ..... Respondent
                 Through: Mr. Paramhans, Adv. for Mr. Arun
                           Birbal, Adv.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.       Whether reporters of Local papers may       yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?      yes

3.       Whether the judgment should be reported           yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The appellant workman impugns the order dated 08.07.2011 of the

learned Single Judge of this Court dismissing W.P.(C) No.4685/2011

preferred by the appellant against the award dated 29.07.2010 of the

Industrial Adjudicator on the following reference:

"Whether the action of the management of Superintending Engineer, Delhi Development Authority, in terminating the services of Shri Sukh Dev Singh w.e.f. 25.07.2006 is legal and justified? If not, what relief the workman is entitled to?"

and holding the appellant workman to have abandoned his service and thus not entitled to any relief.

2. The factual scenario not controverted before us is, that the appellant

joined the employment of the respondent DDA as a Mate on Muster Roll

Basis on 26.08.1981; he was on 06.03.1984 converted as Work Charge

Mate; that he unauthorizedly absented from duty from 01.09.2004; that

letters dated 06.10.2004, 20.12.2004, 08.08.2005, 15.10.2005 &

31.01.2006 were issued to him asking him to join back the duty and

intimating him that if he did not so join the duty, he would be presumed to

be no longer interested in continuing in service; despite service of the

aforesaid letters, he did not opt to join duty; a notice dated 17.05.2006 was

also published in as many as three newspapers asking him to join back the

duty and again informing him that upon his failure to join, he would be

deemed to be no longer interested in continuing his service; finally vide

Memorandum dated 25.07.2006 his services were terminated.

3. The appellant claims that he recovered from his illness on

08.08.2006 and upon being not allowed to join duty raised the industrial

dispute in or about 2008-09 upon which reference aforesaid was made on

30.09.2009.

4. The Industrial Adjudicator in the award dated 29.07.2010 held that

from the conduct of the appellant of notwithstanding repeated letters /

memos aforesaid calling upon him to join back duty and informing him

that on failure he would be presumed to be no longer interested, remaining

unauthorizedly absent established abandonment by the appellant workman

of his employment. It was further held that contract of service requires an

employee to perform his duties and absence from workplace for as long as

22 months was capable of no other inference than unwillingness to perform

duty. The respondent DDA was held justified in presuming so and the

appellant was held not entitled to change his mind. The plea of the

applicant of being ill and on medical leave from 01.09.2004 to 25.07.2006

was held not proved.

5. The learned Single Judge has noticed that though the appellant

workman, before the Industrial Adjudicator set up a case of illness but had

not produced / proved a single document in support thereof and that there

was a complete vacuum of evidence to the effect that the appellant was ill

during the period when the aforesaid notices and memos were served upon

him. In the face of numerous opportunities having been given to the

appellant before presuming him to have abandoned his service, the

judgment of the Apex Court in D.K. Yadav Vs. J.M.A. Industries Ltd.

(1993) 3 SCC 259 was held to be not applicable. The learned Single Judge

also noticed the contention of the counsel for the respondent DDA that the

appellant workman had past history also of unauthorizedly remaining

absent. Accordingly, it was held that no ground for interference with the

award of the Industrial Adjudicator was made out.

6. The counsel for the appellant before us has and rightly so, not

controverted the factual findings aforesaid and has raised only a legal

argument. It is contended that even for treating an employee to have

abandoned the employment, domestic inquiry was a must and which has

admittedly not been conducted. Besides D.K. Yadav (supra) reliance is

also placed on a Five Judge Bench judgment of the Apex Court in Jai

Shankar Vs. State of Rajasthan AIR 1966 SC 492.

7. The rule that abandonment of employment is a misconduct and to be

actionable, domestic enquiry is a must cannot be said to be of absolute

nature. The Apex Court in Punjab & Sind Bank Vs. Sakattar Singh

(2001) 1 SCC 214 held that in the face of the standing orders of the Bank

providing a procedure for treating absentee employee to have deemed to

have voluntarily retired after a particular period of unauthorized absence,

no domestic inquiry was required to be conducted. Similarly, in V.C.

Banaras Hindu University Vs. Srikant AIR 2006 SC 2304 a provision for

deemed abandonment from service was held to be permissible in law so

long as the action taken was fair and reasonable so as to satisfy the

requirements of Article 14 of the Constitution of India. To the same effect

is the recent dicta in the The Regional Manager, Central Bank of India

Vs. Vijay Krishna Neema AIR 2009 SC 2200. Mention may also be made

of the judgment of the Division Bench of this Court M.K. Ahuja Vs.

Syndicate Bank (2011) I LLJ 325 also upholding a case of abandonment

of employment and of Viveka Nand Sethi Vs. Chairman, J & K Bank Ltd.

2005 (5) SCC 337 also laying down that an employer can arrive at a

satisfaction that the workman has no intention to join his duty and raise a

legal fiction and which though is of wide import but once the action on the

part of the employer is found to be fair, the onus is on the workman to

prove to the contrary.

8. The judgment of the Apex Court in Jai Shankar (supra) relied upon

by the counsel for the appellant before this Court is also to the effect that

though an employer may visit the punishment of discharge or removal

from service on an employee who has absented himself but not without at

least telling him that it proposed to remove him and not without giving an

opportunity of show cause as to why he should not be removed. The same

also thus cannot be said to be coming to the rescue of the appellant

workman.

9. In the present case, the appellant workman was initially engaged as a

Muster Roll employee and thereafter was a Work Charge employee and the

finding of the Industrial Adjudicator of absence for 22 months without

intimation and of failure to establish the case set up of illness has attained

finality. Even if the domestic inquiry is held to be necessary, the failure to

hold the said domestic inquiry did not prevent the respondent from

establishing misconduct before the Industrial Adjudicator and which

misconduct of unauthorized absence stands established. The Supreme

Court in Delhi Cloth & General Mills Co. Vs. Ludh Budh Singh (1972) 3

SCR 29, The Workmen of M/s Firestone Tyre & Rubber Co. of India

(Pvt.) Ltd. Vs. The Management (1973) 1 SCC 813, The Cooper

Engineering Ltd. Vs. Sh. P.P. Mundhe (1975) 2 SCC 661, as also in

Bharat Forge Co. Ltd. Vs. A.B. Zodge (1996) 4 SCC 374 has held that

even where no domestic inquiry is held, the employer is entitled

straightaway to adduce evidence to justify its action and Industrial

Adjudicator is bound to consider the said evidence. For this reason also,

the learned Single Judge was correct in not interfering with the Award.

10. The functioning of the public bodies as the respondent DDA is,

would come to a naught if its employees were to be permitted to absent

themselves and join back at their whims and fancies. The respondent DDA

by serving as many as six notices / memos on the appellant workman, gave

ample opportunity to the appellant workman and the counsel for the

appellant workman has not even argued that a fair opportunity was not

given. Thus misconduct stood proved before the Industrial Adjudicator

and the award cannot be challenged for this reason also. The appellant

workman showed total callousness in the matter.

11. There is yet another aspect of the matter. Once the appellant

workman is found to have without any reason having absented from duty

and having not responded to the repeated memos / communications of the

respondent DDA, the equities are not in his favour. The powers, while

exercising jurisdiction under Article 226 of the Constitution of India, are

wide and this Court to do substantial justice between the parties can

decline relief even where entitlement in law is made out (see Chandra

Singh Vs. State of Rajasthan 2003 (6) SCC 545 and ONGC Ltd. Vs.

Sendhabhai Vastram Patel (2005) 6 SCC 454). No injustice is found to

have been done to the appellant workman and rather injustice would be

done if appellant workman were to be reinstated notwithstanding his

conduct aforesaid.

12. We therefore do not find any merit in the appeal. The same is

dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE NOVEMBER 08, 2011 'gsr'