Suman Tuteja v. Hindalco Industries Ltd

order.

¶17We have minutely gone through the orders both of the Labour Court as well as the learned Single Judge and given our thoughtful consideration to the submissions made by counsel for both the sides. At the outset, we would like to point out that this is a case where on the charge of unauthorized absence, the services of the workman were terminated by the management. Facts noted above would show that the workman was transferred from Head Office to Staff House. She initially joined the said place of transfer. Thereafter, she made request to re-transfer her back. This request was specifically declined and she was asked to resume duties at Staff House only. She submitted leave application seeking leave from 11.03.1986, though on

09.04.1986, on the ground that her new born baby was sick and this application was supported by medical certificate. In the meantime, she approached the conciliation machinery challenging the transfer on the ground that it was malafide and the conciliation proceedings commenced thereupon. It is during the conciliation proceedings that charge sheet for unauthorized absence was served upon her.

¶18Since the inquiry was held to be vitiated and the management was given an opportunity to prove the charge before the Labour Court, the matter is to be examined on the basis of evidence produced before the Labour Court about the alleged misconduct of the workman, namely, unauthorized absence from 11.03.1986 onwards. No doubt, merely because workman has raised the industrial dispute regarding transfer would not mean that there is an automatic stay on transfer and even when the conciliation proceedings are pending, the workman is supposed to join the transfer place of posting unless there is a specific stay order passed by a court of competent jurisdiction. However, in view of the nature of the charge, the focus has to be on the issue as to whether the workman remained unauthorizedly absent from duty without any cause or information or justified reasons as that was the thrust of the charge.

¶19In the instant case, first period of the absence is from 11.03.1986 to 15.04.1986. The workman had submitted leave application for this period supported by medical certificate. It cannot be said that the leave application is automatically sanctioned. It is also correct that the management had written letter dated

27.03.1986 asking the appellant to join the duties within three days. However, application was submitted subsequently, i.e. on

09.04.1986. Thereafter, there is no communication of the management turning down this request for leave specifically. There is no letter also, after 09.04.1986, asking her to join duties at the Head Office. Therefore, we are of the opinion that even when there was no overt act on the part of the management in

sanctioning the leave, since this leave was supported by medical certificate, it cannot be stated that she was absent for this period without any sufficient cause. This conclusion of ours get strengthened when we find that in the evidence produced before the Labour Court there is no whisper by the management witness about this leave application and how it was treated. We state at the cost of repetition that Labour Court was to examine the matter on the basis of evidence produced before it on record. Thus, we find that Labour Court was right in concluding that in the absence of any evidence produced by the management that the medical certificate was not genuine or that the leave application was specifically denied, the charge of willful unauthorized absence for the period from 11.03.1986 to

15.04.1986 is not made out. This conclusion gets further support from the proceedings dated 15.04.1986 before the Conciliation Officer. Though we would consider the validity of these proceedings in detail hereinafter, what we are emphasizing at this stage is that it was recorded that "on the joining after leave she will remain in the Head Office till the pendency of the case". The parties at least agreed on that date, that she was on leave.

¶20Coming to the period after 15.04.1986, we are of the opinion that matter cannot be looked into from the narrow angle as to whether recording of 15.04.1986 amounts to "settlement" under the Act and such a settlement is not valid as it is not in conformity with Section 12 of the Act. The focus cannot be on this aspect, i.e. whether it is a settlement or not. On the contrary,

focus is to be on the issue as to whether the workman can be treated as unauthorizedly absent after 15th April, 1986 in view of the said recording in the order sheet of 15.04.1986. Shorn of any technicalities, fact remains that Sh. Avdhesh Kumar was the representative of the management who appeared in the conciliation proceedings on 15.04.1986. Even when conciliation officer was on leave, a statement is recorded that the workman would remain in the head office till the pendency of the case which is signed by Sh. Avdhesh Kumar. It is not to be treated as order of the clerk of the Conciliation Officer or that he had no authority to pass such an order. It is to be treated as statement of the parties. More importantly, from this statement, the question of conduct of the workman is to be decided. Obviously when such a settlement is recorded, the workman could legitimately infer that she is treated on leave at present and thereafter she has to report to the Head Office for duty. She had said so specifically in her statement that she returned for duty after

15.04.1986.

¶21When we see the proceedings of 15.04.1986 in conjunction with proceedings of 30.04.1986, a distinctive feature which needs to be noted is that the statement of 15.04.1986 is discussed on

30.04.1986. On that date, Conciliation Officer was present. From the side of management, it is the marketing executive, i.e. a senior officer was present. He agreed to discuss the matter with senior executive for "finding out the solution about the settlement dated 15.04.1986". Thus, he agreed that matter would be discussed with the higher management and solution

would be found out pertaining to the settlement recorded on

15.04.1986. In such a state of affairs, can it be said that the absence of the workman from Staff House was willful. Could not she presume, on the basis of these proceedings before the Conciliation Officer, that the matter is under consideration and is being sorted out and, therefore, she could report to the Head Office. In any case, it would be difficult to hold that she was willfully and unauthorizedly absent from duty.

¶22We agree with the submission of learned counsel for the workman that when the Labour Court had appreciated the facts in a broad manner and arrived at the aforesaid findings, which were not perverse and view taken by the Labour Court was plausible, the learned Single Judge while examining this award in judicial review under Article 226 of the Constitution could not have interfered with these findings.

¶23We thus set aside the impugned order of the learned Single Judge and hold that the termination of the services of the workman was not proper.

¶24We would now revert back to the question of relief. The Labour Court has granted reinstatement with continuity of service and full back wages. Having regard to the fact that there are strained relationship between the parties coupled with the fact that termination took place way back in the year 1986, we are of the opinion that a relief of reinstatement would not serve any purpose. Instead, it is a case where lumpsum compensation should be awarded. Having regard to the totality of circumstances, namely, the number of years of service which

was rendered by the workman before her termination, the intervening period etc., we are of the view that interest of justice would be sub-served if we award compensation of Rs.5 Lakhs. The award of the Labour Court is modified to the aforesaid extent holding that on the payment of the said compensation, the appellant shall have no right to claim reinstatement or re-employment with the management and the management shall be in full and final satisfaction of all her claims. The appellant shall also be entitled to costs quantified at Rs.25,000/-.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW)

JUDGE JUNE 01, 2012 pk

* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA No.896 of 2011 Reserved on: 20th March, 2012 % Pronounced on: 1st June, 2012 SUMAN TUTEJA . . . Appellant Through: Mr. S.L. Hans, Advocate VERSUS HINDALCO INDUSTRIES LTD. . . .Respondents Through: Mr. Sayed Shahid Hussain Rizvi, Advocate CORAM :- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, Acting Chief Justice 1. The appellant herein (hereinafter referred to as the workman) had challenged her termination from services by the respondent (hereinafter referred to as the management) by invoking the machinery provided under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). Conciliation proceedings started which ended in failure and the Government of NCT of Delhi, as "appropriate Government", referred the dispute vide orders dated 14.7.1987 for adjudication to the Labour Court, Tis Hazari, Delhi. This reference was decided in favour of the workman as vide award dated 25.11.1999, the learned Labour Court held the termination to be illegal and unjustified and directed reinstatement back in service with continuity of service and full back wages including intervening increments and all other attendant benefits. The management challenged this award by filing writ petition under Article 226 of the Constitution of India and vide impugned judgment dated 8.9.2011, the learned Single Judge has allowed the writ petition thereby setting aside the award and holding that the termination was valid and justified. This LPA is preferred by the workman against the judgment dated 8.9.2011 passed by the learned Single Judge. Now the facts in detail. FACTS IN DETAIL 2. The workman was appointed as a Stenographer with the management with effect from 16.07.1974 at New Delhi in its Head Office. One of the terms of her appointment stipulated in the appointment letter was that her services could be transferred anywhere in India. She worked in the Head Office at Vandana Building, Tolstoy Marg, New Delhi till 01.07.1978. On 01.06.1978, she was transferred from the post of Stenographer to that of Receptionist-cum-Telephone Operator on her own request. The management has a staff house at 69, Ring Road, Lajpat Nagar III, New Delhi. Vide order dated 13.02.1986, she was transferred to the said Staff House as according to the management, there was a requirement of Receptionist-cum- Telephone Operator there. At that time, she was on maternity leave. Therefore, this transfer order was sent to her by registered post. Subsequent reminders were also sent to her by UPC or by hand. According to the workman, she did not receive any of these orders except letter dated 27.02.1986 which was received by her maid when she was not at home. In the meantime, she had sought extension of leave up to 28.02.1986 which was granted by the management. On 01.03.1986, the workman reported for duty at the Head Office. However, she was not taken on duty as she was told that her place of posting, now, was Staff House at Lajpat Nagar. 02.03.1986 being Sunday, she went to Head Office again on 03.03.1986. Now she was handed over transfer orders dated 03.03.1986. Next day, i.e. on 04.03.1986, she returned for duty at Staff House and requested for re-transfer to Head Office on the ground that Staff House was used as Guest House for outsiders and marriage parties etc. On the following day, i.e. 05.03.1986, she did not join duties. On 06.03.1986, she submitted a leave application for three days which was granted to her. She joined duties on 08.03.1986 till 10.03.1986 at Staff House. However, from 11.03.1986, she again started absenting. During this period, she submitted another representation to the management on 08.03.1986 requesting it to review the transfer order and post her back to the Head Office. This request was specifically rejected on 11.03.1986. She however refused to join the duties at Staff House and vide her letter dated 12.03.1986, she specifically alleged that she was smelling