(Through Hybrid Mode) vs Mgmt. M/S. Trident
2023 Latest Caselaw 2363 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                       W.P.(C) No.10075 of 2016
                        (Through Hybrid mode)
Raja Kishore Panda                              ....                      Petitioner
                                     -versus-
MGMT. M/s. Trident, BBSR and                    ....              Opposite Parties
another

Advocates appeared in this case:

For petitioner:                       Mr. Abhiram Swain, Advocate

For opposite parties:                 None

CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA

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                     Date of hearing and Judgment: 23.03.2023
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ARINDAM SINHA, J.

1. The writ petition was moved before co-ordinate Bench as

long back as on 6th September, 2016. There was direction for

issuance of notice. It then was listed before us on 28th February,

2023. By order made that day, learned advocates engaged by

opposite party no.1 (management) obtained leave to retire on

submission of memo saying lack of instructions.

2. Today Mr. Swain submits, finding in the award is perverse.

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His client could not have been held to have voluntarily abandoned

his employment in the facts and circumstances. The finding is also

illegal as against law declared by the Supreme Court in G. T. Lad v.

Chemicals and Fibers India Limited, reported in AIR 1979 SC

582.

3. The management going unrepresented, we perused impugned

award dated 26th December, 2015 and heard Mr. Swain on his

client's contention that he did not voluntarily abandon his

employment.

4. On perusal of the statement of claim we find that the facts

have been correctly reproduced in impugned award. Briefly, they are

that petitioner was found sleeping during duty hours. A departmental

proceeding was commenced, pursuant to petitioner having been

suspended. The proceeding resulted in order of punishment, of, inter

alia, suspension without wages for 6 days. Impugned award says the

suspension, proceeding and resultant punishment order are not

subject matter in the case. Prayer made in the statement of claim is

reproduced below.

"PRAYER

The 2nd party workman therefore prays that since the termination of his service by the Management in the guise of voluntary abandonment of employment is

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prima-facie illegal, unjustified, arbitrary as well as in gross violation of provisions of the Industrial Disputes Act, 1947, the Hon'ble Tribunal be pleased to pass the award

i) declaring the termination of the 2nd party workman as illegal and unjustified;

ii) directing for reinstatement of the workman in service with full back wages, continuity of service with all consequential service benefits,

iii) any other relief that this Hon'ble Tribunal may deem fit and proper to the workman in the interest of justice,

iv) and the costs of the proceedings be also awarded to the workman."

We have ascertained that the case was initiated by petitioner under

section 2-A(2) in Industrial Disputes Act, 1947, as borne out from

the cause title of impugned award itself. Furthermore, we made

query to Mr. Swain and he confirmed that this was the only industrial

dispute case between his client and the management.

5. On culmination of aforesaid proceeding resulting in the

punishment, petitioner did not resume his duty. He was issued final

reminder dated 22nd May, 2013, about which the Labour Court said

that it carried ultimatum. Contents of the notice stand extracted in

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impugned award and are reproduced below.

"However, before taking any final decision on your employment, you are finally advised to comply with the order of punishment dated 24.12.2012 on or before 27.05.2013 positively failing which, it shall be construed that you do not intend to continue your employment under us and have voluntarily abandoned your employment. Therefore, kindly treat this as final reminder for compliance and in the event of your failure, your employment shall be ceased with effect from 27.05.2013 without further reference to you on the ground of your voluntary abandonment."

(emphasis supplied)

6. Petitioner was to have resumed his duties on or before 27th

May, 2013 after having remained absent. He did not do so. It appears

the management, in terms of their reminder dated 22nd May, 2013,

issued termination letter on 5th July, 2013. Petitioner replied on 11th

July, 2013 contending that unless his demand was fulfilled, he was

not going to resume his duties. The statement of claim stands

annexed to the writ petition, wherein under list of documents relied

upon, at serial 16 is petitioner's said letter dated 11th July, 2013 but

the letter itself has not been disclosed. Therefore, we found from

impugned order that his stand was stated by the Labour Court to be,

the punishment being unfair and illegal, petitioner is to be treated as

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on duty by the management and he will wait till the dispute was

resolved by the Labour Machinery.

7. After the termination petitioner filed the statement of claim

resulting in case being registered and numbered in the Labour Court

under section 2-A(2). The case was contested by the management in

the Labour Court. On pleadings filed, issues were framed. The issues

are reproduced below.

"1. Whether the case is maintainable?

2) Whether the cessation of employment of the second party workman w.e.f. 05.07.2013 is on account of voluntary abandonment or is it a case of termination by the first party management?

3) Whether the action of the management of M/s. Trident, Bhubaneswar in terminating the service of Sri Raj Kishore Panda, Commis is legal and / or justified?

4) If not, what relief Sri Panda is entitled to?"

8. From above facts it emerges that the initially charged act of

petitioner was ascertained to be sleeping on duty. He had been

suspended and in ensuing departmental proceeding he was found

guilty. Punishment was awarded. Pursuant thereto petitioner did not

resume duty. He was given final notice as aforesaid. He still did not

join and resume his duties. In terms of the final notice, his services

stood terminated. It is, therefore, clear that petitioner was, in the time

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of absence, not unwell and as such, unable to join and resume his

duties. His initial cessation of duties was brought about by the

suspension order but thereafter, he did not join.

9. We reproduce paragraph 6 from judgment of the Supreme

Court in G. T. Lad v. Chemicals and Fibers India Limited,

reported in AIR 1979 SC 582.

"6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah (1964) 4 SCR 265: (AIR 1964 SC 1272), it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case."

(emphasis supplied)

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Said Court by its earlier referred judgment in Buckingham and

Carnatic Co. Ltd. v. Venkatiah, reported in AIR 1964 SC 1272

had said, under common law, inference that an employee has

abandoned or relinquished service is not easily drawn unless from

the wrongful absence and from other surrounding circumstances, an

inference to that effect can be legitimately drawn and it can be

assumed that the employee intended to abandon service. A passage

from paragraph 5 in the judgment is reproduced below.

"... ... ... Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms and conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. ... ... ..."

We have not been told about certified Standing Orders on agreement

of conditions of service, existing between the management and

petitioner. The award also does not say so.

10. Relying on G. T. Lad (supra) the Labour Court said, inter

alia, in paragraph 7 of impugned award as reproduced below.

"7. As it is seen from the pleadings and evidence of the parties that the second party workman instead of

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resuming his duty pursuant to the notice Ext.E remained silent till he gave a reply on 11.7.2013 after issue of his termination letter dated 5.7.2013 by the first party management. From the above facts and circumstances as emerging from the pleadings and evidence of the parties an irresistible conclusion can be drawn that the second party workman remained adamant instead of resuming his duty contending that unless his demand was fulfilled he was not going to resume his duty. It is the stand of the first party management that when the second party workman did not come forward to join his duty after lapse of more than six months despite persuasion it was safely construed that the workman has voluntarily abandoned his employment and no illegality was committed on the part of the management in issuing termination letter dated 5.7.2013 treating the conduct of the second party workman as a case of voluntary cessation or abandonment of employment. "

11. Regarding question of abandonment of employment the

Labour Court considered law declared by the Supreme Court in G.

T. Lad (supra). Therein was reliance on Venkatiah (supra) for the

point that abandonment or relinquishment of service is always a

question of intention. From the facts as stated above we have to

answer the question on whether petitioner intended to abandon or

relinquish his service. We have no doubt in our mind that petitioner

was aware that there was departmental proceeding against him,

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launched on charge that he was found sleeping on duty. Upon being

suspended, petitioner remained away from his workplace. It appears

from paragraph 6 of the statement of claim that petitioner alleged to

have filed a petition dated 8th January, 2013 before the District

Labour Officer. Therein he had contended that he is ready to resume

his duty provided his suspension, pending finalization of disciplinary

proceeding, will be treated as duty and stated further that he will wait

for decision of the Labour authorities in the matter. This stand taken

unilaterally by petitioner, without force of an order obtained from the

Labour Court or any other forum, must be taken as wilful intention to

not resume his duties. A workman, under the scheme of the Act, is

not empowered to put a condition for keeping in abeyance an order

of punishment, at the stage of approach by him to the District Labour

Officer. Said officer does not have the power to direct interim

measure. So also there is no provision for issuance of interim

direction in conciliation. Petitioner filed statement of claim under

section 2-A(2). As aforesaid, upon pleadings completed, the Labour

Court framed issues as have been reproduced above and correctly

found, inter alia, the suspension, proceeding and resultant

punishment orders are not subject matter of the case. In the

circumstances, it was a deliberate act on the part of petitioner to not

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resume his duties. This cannot be justified by saying he had taken a

stand that unless the punishment order was upheld by the Labour

authorities, it could not be implemented. This contention or stand of

petitioner does not find support in law, to be maintained or sustained.

He could have resumed his duties, without prejudice to his

contention that the punishment was illegal, had to be looked into and

adjudicated by the Labour Court. In his statement of claim, he

omitted to pray for adjudication of the punishment order. Inevitable

conclusion is that, therefore, petitioner intended not to join his duties,

with accompanying consequential inference of abandonment of

service. More so because object of the Act is also that where a

dispute has been referred for conciliation and adjudication, absence

from work in furtherance of the dispute, is both unnecessary and

inexpedient. Petitioner-workman stayed away from work, inspite of

notices to join his duties. In the facts and circumstances, impugned

award does not suffer from perversity.

12. In view of the above we do not find merit in the writ petition.

It is dismissed.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge Prasant