Jharkhand High Court
General Manager vs Loko Mahto S/O Ojha Mahto on 25 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
W.P.(L) No.6492 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.6492 of 2018
------
1. General Manager
2. Manager
3. Deputy Manager (Personnel)
La Opala RG Ltd. Madhupur, P.O. & P.S. Madhupur, District-
Deoghar ... Management/Petitioners
Versus
Loko Mahto S/O Ojha Mahto, Resident of village- Bhokta Chhorat,
P.S. Madhupur, P.O. Ramchandrapur (Madhupur), District-
Deoghar, Jharkhand - 815353 ... Workman/Respondent
------
For the Petitioners : Mr. Sumeet Gadodia, Advocate
Mrs. Shilpi Sandil Gadodia, Advocate
Ms. Shruti Shekhar, Advocate
Mr. N. Choubey, Advocate
For the Respondent : Mr. Lalit Yadav, Advocate
------
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Writ Petition has been filed under Article 226 of the Constitution of
India inter alia with a prayer to set aside the Judgment/Award dated 29.09.2018
passed by learned Presiding Officer, Labour Court, Deoghar in I.D. Case No.02
of 2011.
3. The brief fact of the case is that the respondent was a workman under the
management of La Opala RG Ltd. of which the petitioners are the officers. The
respondent joined in the year 1996 and his service was confirmed on
01.01.1998. It is the case of the respondent that on 21.09.2010 when the
respondent went to his work place to join his duty he was not allowed to enter
into the factory premises and on being asked he was informed that he has been
dismissed from the service. The respondent, claiming that his dismissal from
service without any show-cause or domestic enquiry amounts to retrenchment,
filed I.D. Case No.02 of 2011 in the Labour Court, Deoghar under Section 25 F
of the Industrial Disputes Act, 1947 claiming that the termination order of the
management dated 21.09.2010 was bad in law. The petitioner- management
pleaded before the Labour Court that on 18.09.2010, the respondent was in 'C'
Shift duty and he left the factory premises on 19.09.2010 in the morning hour.
The respondent was on duty. On 20.09.2010, it was reported by the In-charge of
the Acid Section to the Management that when the In-charge on 19.09.2010 in
the morning hour joined his duty, he found smell of petrol and diesel coming
from the polishing solution tank resulting in heavy loss to the Management as
because of such smell, a lot of finished goods are to be rejected. When the
respondent was asked about the smell, he left the factory premises and
remained absent on the duty since 21.09.2010. The Management issued a show-
cause to the respondent on 05.10.2010 but the respondent refused to receive the
same. The Management issued a charge-sheet to the respondent on 19.10.2010
but the respondent did not receive the same either. The Management decided
to hold a fair and impartial enquiry into the allegation and charges levelled
against the respondent. The Management and officers informed the respondent
several times to attend the enquiry but the respondent did not attend the
enquiry proceedings. The respondent raised the issue before the Assistant
Labour Commissioner, Deoghar vide his letter No.211 dated 25.02.2011 and the
Assistant Labour Commissioner, Deoghar directed the respondent to attend the
enquiry but the respondent did not attend the enquiry even after such direction
of the Assistant Labour Commissioner, Deoghar. As an Industrial Dispute is to
be raised first with his employer but no such dispute was raised by the
respondent but the respondent directly raised the issue with the Labour Court,
hence, the Assistant Labour Commissioner, Deoghar observed that there is no
Industrial Dispute and the application filed by the respondent before the
Labour Court was in the nature of an appeal against the order passed by the
Assistant Labour Commissioner, Deoghar. Hence, the Labour Court has no
jurisdiction to entertain the same.
4. The Labour Court altogether framed six issues but the issue which is
germane to this writ petition is the issue No. B which reads as under:-
(B) Whether petitioner workman remains absent since
21.09.2010 or he was not permitted to report on his
duty by Management?
5. The Labour Court, while deciding issue No. B, has in no uncertain terms,
has recorded that there is no documentary proof or follow up action on behalf
of the respondent-workman to prove his pleadings as far as evading from
joining his duty is concerned. The workman did not inform his union about the
alleged act of the company officials in not allowing him to join his duty. The
first step taken by the workman was to send a lawyer's notice dated 29.11.2010.
The Labour Court also took note of the fact that in the standing order vide Rule
(18) (B) (S) absence without leave has been reckoned a misconduct but the
Labour Court went on to observe that as no official action has been taken by
the Management, hence, Management cannot escape its responsibility under
cover of voluntary absence of workman. Therefore, the Labour Court went on
to find that absence of workman since 21.09.2010 from his duty is not a
voluntary one rather the management is responsible for not permitting him to
join his duty and also answered the other issues in favour of the workman who
is the respondent of this writ petition and ultimately went on to hold that the
case of the workman is a case of retrenchment and the workman was directed
to be re-instated and he is entitled for his back wages @ 33% of his salary as on
21.09.2010 till the date of his joining at his job and directed the petitioners of
this writ petition, who are the opposite parties of I.D. Case No.02 of 2011 to re-
instate the workman at his job within one month from the date of the order and
further to pay the back wages as directed above within two months after
joining of the workman at his job.
6. Learned counsel for the petitioners relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Vijay S. Sathaye v. Indian
Airlines Ltd. & Others reported in (2013) 10 SCC 253 paragraphs-12, 14 and 16
of which reads as under:-
"12. It is a settled law that an employee cannot be termed as a slave,
he has a right to abandon the service any time voluntarily by
submitting his resignation and alternatively, not joining the duty
and remaining absent for long. Absence from duty in the beginning
may be a misconduct but when absence is for a very long period, it
may amount to voluntary abandonment of service and in that
eventuality, the bonds of service come to an end automatically
without requiring any order to be passed by the employer.
14. For the purpose of termination, there has to be positive action on
the part of the employer while abandonment of service is a
consequence of unilateral action on behalf of the employee and the
employer has no role in it. Such an act cannot be termed as
"retrenchment" from service. (See State of Haryana v. Om
Parkash [(1998) 8 SCC 733 : 1999 SCC (L&S) 262] .)
16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65 : 2000 SCC
(L&S) 601] and Aligarh Muslim University v. Mansoor Ali
Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC
2783] this Court ruled that if a person is absent beyond the
prescribed period for which leave of any kind can be granted,
he should be treated to have resigned and ceases to be in service. In
such a case, there is no need to hold an enquiry or to give any notice
as it would amount to useless formalities. A similar view has been
reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC
42: (2007) 1 SCC (L&S) 327] , Chief Engineer
(Construction) v. Keshava Rao [(2005) 11 SCC 229 : 2005 SCC
(L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC
462 : (2009) 2 SCC (L&S) 689] ." (Emphasis supplied)
and submits that it is a settled principle of law that when absence is for a
very long period it amounts to voluntary abandonment of service and in that
eventuality, the bonds of service come to an end automatically without
requiring any order to be passed by the employer and such an act cannot be
termed as retrenchment from services.
7. Learned counsel for the petitioners further drew the attention of this
Court to the deposition of the management witness to the effect that the
undisputed fact remains that the management issued a show-cause regarding
the misconduct, the management issued notice to the respondent to join his
duty, the Assistant Labour Commissioner also directed the respondent to
attend the domestic enquiry but the conduct of the respondent in not joining
his duty or the domestic enquiry shows that this is a case of voluntary
abandonment of service by the respondent and the Labour Court committed a
perversity by holding that even though the workman has failed to come up
with any evidence in support of his pleading that he was prevented from
joining his duty still the same amounts to a retrenchment. Hence, it is
submitted that the said Judgment/Award dated 29.09.2018 passed by learned
Presiding Officer, Labour Court, Deoghar in I.D. Case No.02 of 2011, being a
perverse one, be set aside.
8. Learned counsel for the respondent-workman submits that since the
petitioner-management did not allow the respondent-workman to join his duty
so, the respondent could not have any document in support of such an act and
as the management has not complied with the provisions of Section 25 (F) of
the Industrial Disputes Act, 1947 that as the services of the petitioner has been
terminated by the management for reason otherwise than as a punishment
inflicted by way of disciplinary action without complying with the provisions
of Section 25 (F) of the Industrial Disputes Act by giving him notice or in lieu
thereof wages for the period of notice making him payment, so, his termination
of service is illegal. Hence, no illegality has been committed by the learned
Labour Court in holding that the termination of the service of the respondent is
a retrenchment. Hence, it is submitted that this Writ Petition, being without
any merit, be dismissed.
9. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, so far as the claim of the
respondent- workman regarding his retrenchment is concerned, it is evident
from the cross-examination of the workman who was examined as P.W.3
wherein he admits that Ext. 3 which is the letter written by him to the
petitioner No.3 wherein he has categorically stated that he is not willing to
resume duty with the management as he has also filed a case against the
management before the Labour Court, Deoghar vide I.D. Case No.02 of 2011
for redressal of his grievance and the matter is sub judice.
10. Section 2 (oo) of the Industrial Disputes Act, 1947 defines retrenchment
which reads as under:-
2. (oo) "retrenchment" means the termination by the employer of
the service of a workman for any reason whatsoever, otherwise than
as a punishment inflicted by way of disciplinary action, but does not
include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the employer
and the workman concerned contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a result of
the non-renewal of the contract of employment between the
employer and the workman concerned on its expiry or of such
contract being terminated under a stipulation in that behalf
contained therein; or
(c) termination of the service of a workman on the ground of
continued ill-health;"
It is needless to mention here that in order to constitute retrenchment,
there has to be the termination of service of a workman for any reason
whatsoever otherwise than a punishment inflicted by way of a disciplinary
action.
11. After going through the materials available in the record, this Court finds
that the respondent-workman, has in categorical terms admitted that he has not
been informed about the termination of his service with the management. The
learned Labour Court committed a perversity by overlooking this essential
ingredient of retrenchment i.e., the termination of service of the workman. In
the absence of any pleading or proof by the respondent-workman to the effect
that his services have been terminated, rather his candid admission during the
evidence that he has not received any termination order, the Labour Court
certainly committed a grave illegality and perversity by holding that the
absence of the workman from his duty since 21.09.2010 amounts to
retrenchment. In view of the settled principle of law , as already mentioned in
the foregoing paragraphs of this judgment itself, that in case of long voluntary
absence from duty by a workman, the same cannot be termed as retrenchment
and the employer is not required to pass any order and as the undisputed fact
remains that though before the domestic enquiry was completed on 04.04.2012,
the respondent filed the Industrial Dispute invoking Section 25 (F) of the
Industrial Dispute Act, 1947 before the learned Labour Court and the
undisputed fact remains that before that show-cause notice was issued to the
respondent, domestic enquiry was conducted and the Assistant Labour
Commissioner, Deoghar directed the respondent-workman to attend the
domestic enquiry. In view of all these facts, the Labour Court, Deoghar has
committed a grave illegality in observing that no official action has been taken
by the management.
12. Accordingly, this Court has no hesitation in holding that the finding of
the Labour Court, Deoghar in respect of issue 'B' is a perverse one and that
being the core issue of the Industrial Dispute No.02 of 2011 and on the basis of
the finding of issue No. 'B', the Labour Court has held that the case of the
workman-respondent is a retrenchment. Hence, this Court has no hesitation in
holding that the Judgment/Award dated 29.09.2018 passed by learned
Presiding Officer, Labour Court, Deoghar in I.D. Case No.02 of 2011, is not
sustainable in law.
13. Accordingly, the Judgment/Award dated 29.09.2018 passed by learned
Presiding Officer, Labour Court, Deoghar in I.D. Case No.02 of 2011 is set
aside.
14. In the result, this Writ Petition stands allowed.
15. Let a copy of this judgment along with the lower court records be sent
back to the learned court below forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 25th of January, 2024
AFR/ Animesh
