JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 17th April, 2003 whereby the learned Labour Court No. – V, Delhi directed the reinstatement of the petitioner with continuity of service with 50% of back wages.
2. Brief facts, relevant for the purpose of deciding this writ petition are that the respondent workman was allegedly working at the post of mechanic with the petitioner. He contended that on 16th April, 1994, he demanded the facilities orally viz. casual leave, D.A., bonus, leave-book, appointment letter, attendance card etc. etc. He was making demands for these things even earlier also. On 16th April 1994, the management got annoyed because of these demands and without any reason or notice terminated his services on 17th April, 1994. The workman complained about the illegal termination to the Labour Inspector through union. However, the management refused to take him back on duties or give him back wages despite interference of the Labour Inspector. The workman sent a demand notice on 19th April, 1994 seeking reinstatement, back wages, overtime etc. with no result. The matter was referred to Conciliation Officer where also nothing happened therefore, he raised an industrial dispute which was referred for adjudication to the Tribunal in following terms:
Whether the services of Sh. Tufani Ram have been terminated illegally and/or unjustifiably by the management and if so to what relief is he entitled and what directions are necessary in this respect?
3. Before the Labour Court, the workman reiterated his claim stating that he was working as a ‘karigar’ and the management terminated his services on 17th April, 1994 on his making demands for giving him legal benefits, overtime and other wages etc.. The management in its written statement stated that the respondent was employed with the management from 1st April, 1992 till 15th April, 1994. He was a member of the Provident Fund and ESI and the contributions were regularly being deducted and his last drawn salary was Rs. 1400/-. He was working as a helper and being given minimum wages prescribed by the appropriate Government. He was issued an appointment letter and no demand was ever raised by the workman. The management had not terminated his services rather he himself did not come on duty w.e.f. 16th April, 1994. He was offered duties during conciliation proceedings, which he refused. The workman was gainfully employed.
4. The learned Labour Court after appreciating the evidence of both sides came to the conclusion that the claim of the workman that the management was not providing him legal facilities was false. The workman in his cross examination admitted the appointment letter issued by the management showing his appointment as an helper. He admitted that he was governed by ESI, Provident Fund and his wages were paid to him on signing on wages register. However, the Labour Court came to the conclusion that though the management taken the stand that they had offered the duties to the workman during conciliation proceedings but no record to this effect was filed by the management before the Labour Court. No charge-sheet was issued to the worker. Once, it was admitted by the management that the workman was in service, if the plea of abandonment was taken by the management, it was the management who had to prove that the workman had abandoned the service and in case the management failed to prove the abandonment, it would be presumed that the workman was retrenched. The Labour Court observed that in case the workman was absenting, an enquriy against the workman should have been held but the management in this case had not held an enquiry. The mere assertion of the management of offering duty during conciliation proceedings was of no avail. The management had not placed on record any letter to show that the duties were offered to the workman or there was bonafide on the part of the management. The Labour Court held that it was a case of illegal retrenchment and granted reinstatement with 50% back wages to the workman.
5. The very basis of the claim of the workman regarding termination of his service by the management was that he made demands for appointment letter and other legal benefits under law and on making these demands the management got annoyed and terminated his services. This basis got knocked out when the workman admitted in his evidence that appointment letter was issued to him and the legal benefits like provident fund, ESI etc. were being given to him and he was being paid wages after obtaining his signatures in the wage register. He had not stated in his statement of claim – when he put overtime, how much was his overtime which was refused to him or when he applied for leave which was not granted to him. Once, the basis on which a workman claimed that he was terminated stands knocked out, a heavy onus shifts to the workman to show that his services were actually terminated by the management and to show the reasons for termination. The termination is a positive act of the management and management has to do this act for some reason. The respondent was working as a helper. Helper is an unskilled person and appointed to do some job and unless there is some reason his service would not be terminated by the management. Moreover, the workman was working with the management for more than two years he had gained experience with the management during this period and had become more useful for the management day by day. Why the management should have terminated his services without any reason, when the statutory period of 240 days was already there and any break in service would not have helped management. The falsity of the claim of the workman is writ large. In the notice served upon the management, he described himself as a mechanic, which is a skilled workman. In the statement of claim he described himself as a karigar while actually he was appointed as an helper. He harped upon providing of legal facilities like appointment letter, ESI, Provident Fund, wage register etc. while he admitted in his cross examination that all legal facilities were being given to him.
6. It is commonly known that a person, who is working in the industry keeps on trying for better jobs and better opportunities. The moment he gets better job, he is free to leave his previous employer. The industrial law does not require him to pay any compensation to the employer while leaving his job, as the industrial laws require an employer to pay retrenchment compensation when employer wants to terminate the workman. Thus, there are no fetters on the workman on leaving the job while there are fetters on the employer in terminating the service of an employee. If a workman leaves his job all of a sudden and stops attending the workplace of the employer, Industrial Dispute Act does not put any obligation on the employer to call back the workman and request him to come and join his duties. Such a request can be made by the employer only when employer considers that a useful workman should not leave the job or where a workman is governed by certain rules and regulations under State employment and the employer is supposed to hold an enquiry under the service rule before termination of service of an employee. Where the workman is free to leave and join another employer without even a notice and without obtaining a no objection from his employer, the employer cannot be compelled to call such a workman for joining the duties or to conduct an enquiry into the absence of the workman and then terminate his services. Leaving the services of an employer by the workman is a valid mode of his abandonment and there is no illegality attached to a workman leaving the services of his previous employer and joining another employer. If the employer does not consider the abandonment of service or leaving the service by a workman as a misconduct, the law cannot force the employer to consider such abandonment as a misconduct and hold an enquiry. Misconduct of an employee is the one which an employer considers as the misconduct. An enquiry is required to be held only where an employer intends to impose punishment on the employee for an alleged misconduct. if an employer does not intend to impose any punishment on the employee and considers that if the employee has left his service, let it be so, the law cannot compel the employer to hold an enquiry and punish an employee for the misconduct.
7. I consider that it was not necessary for the employer to hold an enquiry into the abandonment of the service by the respondent. It was for the respondent to prove that his services were terminated for some reasons by the employer or without any reason by the employer. The respondent had taken a stand which was found to be false. Under these circumstances, the Labour Court’s conclusion that it was a case of retrenchment is perverse.
8. A question would arise as to why a workman would raise industrial dispute if he had voluntarily left the service and still make a claim against the employer. For this one has to have peep into union activities. Several pocket unions have been floated by some advocates and self proclaimed union leaders, who run these unions on contract basis. These unions catch hold of such employees and enter into a contract with them of giving them a percentage of the money received from employer. These unions exploit the lacunae in labour laws to fullest possible extent for their own benefit. It is for this reason that in all such statement of claims always one reason of termination is given: ‘workman made demand for legal facilities and he was terminated’. This Court has come across cases where written contracts are entered by union for receiving percentage of amount received by workman, even if the amount is under Section 17B of Industrial Disputes Act for maintenance of workman.
9. In view of my above discussion, I find that the award dated 17th April, 2003 passed by the Labour Court is perverse and is hereby set aside. The writ petition is allowed accordingly.