Labor Memo

8/11/2019 Labor Memo

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Lankeshwar Singh vLanka Facrories

1

BEFORE THE HONBLE PRESIDING OFFICER, LABOUR COURT

AT

NEW DELHI

(UNDER SECTION 10(2)OF THE INDUSTRIAL DISPUTES ACT,1947)

-----IN THE MATTER OF-----

LANKESHWAR SINGH. .PETITIONER

vs.

MANAGEMENT,LANKAFACTORY.....RESPONDENTS

FILED BY COUNSEL NO. 561

-MEMORIAL ON BEHALF OF THE PETITIONER-

-DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER-


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TABLE OF CONTENTS

SERIAL

NUMBER

CHAPTERS PAGE

NUMBER

1 LIST OF ABBREVIATIONS 3

2 INDEX OF AUTHORITIES 4-6

3 STATEMENT OF JURISDICTION 7

4 STATEMENT OF FACTS 8-9

5. ISSUES FOR CONSIDERATION 10

5 SUMMARY OF ARGUMENTS 11-12

6 ARGUMENTS ADVANCED 13-20

7 PRAYER 21


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LIST OF ABBREVIATIONS

S. No Abbreviation Expansion

1. AIR All India Reporter

2. Anr. Another

3. CLB Company Law Board

4. CompCas Company Cases

5. SC Supreme Court

6. SCC Supreme Court Cases

7. All ER All England Report


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INDEX OF AUTHORITIES

STATUTES

! Employees State Insurance Act, 1948

CASES

Serial

Number

Case Citation

1. G.T. Lad and Others v. Chemical and Fibres of India

Ltd.,

AIR 1979 SC 582

2. Express Newspaper (P) Limitedv.Michael Mark andAnr.,

(1962) II LLJ 220 SC

3. Shakuntalas Export House (P) Ltd Vs. Secretary

(Labour)

MANU/DE/0541/2005

4. MCD Vs. Begh Raj 117(2005) DLT 438

5. D.K. Yadav Vs J.M.A. Industries Ltd (1993) 3 SCC 259

6. Lakshmi Precision Screws Ltd. Vs. Ram Bahagat AIR 2002 SC 2914

7. V.C. Banaras Hindu University Vs. Shrikant AIR 2006

SC 2304

AIR 2006 SC 2304

8. Rambhuwal Thakar Prasad Vs. Phoenix Mills MANU/MH/0059/1974

9. Infomedia India Ltd. Vs. Suhas Shripad Gadre MANU/MH/0480/2006

10. The Buckingham and Carnatic Co. Ltd. v. Venkataiah

& Ors.

(1963) II LLJ 638 SC


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11. Aruna Mills Limited vs. Industrial Tribunal and Anr. (1976)IILLJ49Guj

12. Ramchandra Sitaram Kale v. The Maharashtra State

Road Transport Corporation,

(2009) II LLJ 686

Bom

13. ESIC vBelgaum Milk Union 2003(3) LLJ 1042


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STATEMENT OF JURISDICTION

The Counsel for the Petitioner most humbly submits that this Honble Court has the

requisite jurisdiction under Sec. 10 of the Industrial Disputes Act, 1947 to hear this

matter and adjudicate accordingly.

All of which is submitted humbly and respectfully.


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STATEMENT OF FACTS

[I]

The petitioner, Mr. Lankeshwar Singh, was working in the Lanka factory as a

Packingman. He was on 7 days sickness leave from March 30, 2009 to April 7, 2009.

However, he remained on leave till April 23, 2009 without intimating the Management

[II]

The management sent two letters dated April 9, 2009 and April 13, 2009 asking him to

join his duty. Again on April 15, 2009 a letter was sent informing him that if he failed to

report to duty within 2 days it would be presumed that he had left duty.

[III]

On April 24, 2009 he was arrested by the police and hence could not contact the manager

of the Lanka Factory. He was released from the police custody on May 4, 2009, and soon

thereafter, on the same day he contacted the Manager of the Lanka Factory but was not

permitted to enter the factory on the ground that his name had already been struck off.

[IV]

He thereafter approached the Appropriate Government to refer his case to the Labour

court and also applied for the grant of sickness benefit under the ESI Act which was

allowed, by the ESI Regional Manager, from March 30, 2009 to April 23, 2009.


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ISSUES FOR CONSIDERATION

ITHE TERMINATION OF THE PETITIONER WITHOUT A PROPER HEARING

IS NOT SUSTAINABLE


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SUMMARY OF ARGUMENTS

I

THE TERMINATION OF THE PETITIONER WITHOUT A PROPER HEARING

IS NOT SUSTAINABLE

No intention to abandon the employment by the petitioner

Arguendo, even if it is, the termination is violative of principles of natural justice.

W.r.t to Standing Orders, before effect is given to the inference of relinquishment

of service, an opportunity is to be given to the employee to offer an explanation

and only if the said explanation is not found satisfactory by the management, is

the employee to be deemed to have terminated his contract of service.

Also, the Act is against Section 73 of the ESI Act and against the object of the

Act.


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WRITTEN SUBMISSIONS

I

THE TERMINATION OF THE PETITIONER WITHOUT A PROPER HEARING

IS NOT SUSTAINABLE

A.General Principles

According to the factual matrix, there is nothing in the present circumstances or

the conduct of the employee indicating or suggesting an intention on his part to

abandon service which can be legitimately said to mean to detach, unfasten, undo

or untie the binding knot or link which holds one to the office and the obligations

and privileges that go with it.1His absence from duty was purely temporary and

could by no stretch of imagination be construed as voluntary abandonment by

them of the employer's service.2

Arguendo, even if it was abandonment of service, the Division Bench of Delhi

High Court in Shakuntalas Export House (P) Ltd Vs. Secretary (Labour)3

held

that abandonment amounts to misconduct which requires proper inquiry.

To the same effect is another judgment of this Court in MCD Vs. Begh Raj

4

laying down that if the workman had abandoned employment, that would be a

1G.T. Lad and Others v. Chemical and Fibres of India Ltd., AIR 1979 SC 582

2Express Newspaper (P) Limitedv.Michael Mark and Anr., (1962) II LLJ 220 SC

3MANU/DE/0541/2005

4117(2005) DLT 438


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ground for holding an enquiry and passing an appropriate order and that

having not been done, the action of MCD could not have been sustained.

The Supreme Court also in D.K. Yadav Vs J.M.A. Industries Ltd5 has held that

even where the standing orders of the employer provide for dismissing the

workman from service for unexplained absence, the same has to be read with the

principles of natural justice and without conducting domestic inquiry and without

giving an opportunity of being heard, termination of service on the said ground

cannot be effected. The same view was reiterated in Lakshmi Precision Screws

Ltd. Vs. Ram Bahagat

6

Recently, in V.C. Banaras Hindu University Vs. Shrikant

7 it was held that

although laying down a provision providing for deemed abandonment from

service may be permissible in law, it is not disputed that that an action taken

thereunder must be fair and reasonable so as to satisfy the requirements of

Article 14 of Constitution of India; if the action is found to be illogical in

nature, the same cannot be sustained.

A.2The Standing Order

The Standing Order in the present instance reads as : Standing Order 10. If

an employee absents himself for more than 9 consecutive days without leave,

he shall be deemed to have left the service of the Company without notice,

5(1993) 3 SCC 259

6AIR 2002 SC 2914

7AIR 2006 SC 2304


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thereby terminating his contract of service with the Company and no formal

charge sheet would be necessary for terminating the service.

Provided further that if the concerned employee proves to the satisfaction of

the Manager, that his absence was on account of sickness or other valid

reason, the Manager may at his own discretion convert his absence into leave

without pay or with pay if due.

The Division Bench of the Bombay High Court in Rambhuwal Thakar Prasad

Vs. Phoenix Mills8has interpreted standing order in identical term as requiring

that before effect is given to the inference of relinquishment of service, an

opportunity is to be given to the employee to offer an explanation and only if

the said explanation is not found satisfactory by the management, is the

employee to be deemed to have terminated his contract of service.

Another Single Judge of the Bombay High Court in Infomedia India Ltd. Vs.

Suhas Shripad Gadre9has on review of case law and in relation to newspaper

establishment held that the contention of automatic loss of lien upon the

failure of the employee to report for work within a period of eight days of

expiry of leave cannot be accepted and that before the employer seeks to take

action for asserting that consequence, there has to be due compliance of

principles of natural justice, not necessarily a full fledged departmental

enquiry but an opportunity to enable an employee to furnish any explanation

8MANU/MH/0059/1974

9MANU/MH/0480/2006


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he may have explaining his absence without leave. No such opportunity has

been given in the present case.

A.3 Object of Section 73

In the landmark case of The Buckingham and Carnatic Co. Ltd. v. Venkataiah &

Ors.10The Supreme Court held that:

What S. 73(1) prohibits is such punitive action and it limits the extent of the said

prohibition to the period during which the employee is ill.

What S. 73(1) prohibits is punitive action as in the present case and it limits the

extent of the said prohibition to the period during which the employee is ill.11

The general purport of Section 73 is to prevent dismissal, discharge, reduction or

other punishment being imposed on an employee who is ill if it is shown that he

has received sickness benefit.12

ESI Act being welfare legislation needs to be given wide interpretation and has to

be interpreted liberally to include majority of cases that come up for

consideration.13

10(1963) II LLJ 638 SC

11Aruna Mills Limited vs. Industrial Tribunal and Anr.(1976)IILLJ49Guj

12Ramchandra Sitaram Kale v. The Maharashtra State Road Transport Corporation,

(2009) II LLJ 686 Bom

13ESIC vBelgaum Milk Union 2003(3) LLJ 1042


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PRAYER

Wherefore in the light of facts stated, issues raised and arguments advanced, it is

most humbly prayed before this Honble Supreme Court of India at New Delhi, that it

may be pleased to;

! Admit the petition

And pass any other order, as it may so deem fit, in the ends of justice, equity and good

conscience.

All of which is most humbly and respectfully submitted.

Place: New Delhi Sd/- Petitioner

Date: 12thApril 11 Counsel for the Petitioner

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