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IN THE HIGH COURT OF DELHI
Rajiv Sahai Endlaw, J.
Sukhdev Singh – Appellant
Versus
Delhi Development Authority – Respondent
LPA 913 of 2011
Decided On : 08-11-2011
abandonment - Employment Termination - Industrial Dispute Act, 1947, Section 2A, Section 25F - The court discussed the provisions of the Industrial Dispute Act, 1947, particularly Section 2A and Section 25F, which deal with the conditions for retrenchment and the consequences of non-compliance. The court also referred to various judgments to establish the legal principles regarding abandonment of employment, the requirement of domestic inquiry, and the employer's entitlement to adduce evidence to justify its action.
Fact of the Case:
The appellant workman challenged the termination of his services by the management of Superintending Engineer, Delhi Development Authority (DDA), claiming illness as the reason for unauthorized absence. The Industrial Adjudicator held that the appellant had abandoned his employment, and the Single Judge dismissed the appeal, noting the absence of evidence supporting the appellant's illness.
Finding of the Court:
The court found that the appellant's unauthorized absence for 22 months without evidence of illness constituted abandonment of employment. It held that the Industrial Adjudicator's award was justified, and the appellant was not entitled to relief.
Issues: The issues revolved around the appellant's unauthorized absence, the requirement of a domestic inquiry for abandonment of employment, and the fairness of the employer's actions in serving notices to the appellant.
Ratio Decidendi: The court relied on legal principles established in previous judgments to conclude that the appellant's conduct amounted to abandonment of employment, and the employer's actions were fair and reasonable. It emphasized the employer's entitlement to adduce evidence to justify its action and the wide powers of the court to decline relief even where entitlement in law is made out.
Final Decision: The court dismissed the appeal, finding no merit in the appellant's case and stating that no injustice would be done by not reinstating the appellant.
Rajiv Sahai Endlaw, J.
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 Shanker Vs. State of Rajasthan, AIR 1966 SC 492.
7. The rule that abandonment of employment is a misconduct and to be actionable
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