$~32. * + % LPA4672017 MANJU SAXENA IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
14. 07.2017 ..... Appellant Through: Appellant in person. versus UNION OF INDIA & ANR ........ RESPONDENTS
Through: Mr. Gigi C George, Advocate for respondent No.1. Mr. Sandeep Sethi & Mr. Rajiv Nayyar, Senior Advocates along with Mr. Sanjay Gupta, Mr. Ateev Mathur, Mr. Amol Sharma, Ms. Jagriti Ahuja and Mr. Devmani Bansal, Advocates for respondent No.2. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE REKHA PALLI VIPIN SANGHI, J.
(ORAL) Cav No.630/2017 1. Since the caveator has put in appearance, the caveat stands discharged. C.M. No.24365/2017 2. Exemption allowed, subject to all just exceptions. LPA4672017 Page 1 of 13 3. The application stands disposed of. LPA4672017 & C.M. Nos.24364/2017 and 24366/2017 4. The appellant, who has argued her case in person, has preferred the present Letters Patent Appeal to assail the judgment rendered by the learned Single Judge in W.P. (C) No.11344 dated 12.04. 2017, whereby the learned Single Judge has allowed the respondents’ writ petition and set aside the industrial awards dated 01.06.2009 and 15.07.2015 made by the Central Government Industrial Tribunal-cum-Labour Court (CGIT) in favour of the appellant.
5. The learned Single Judge, while setting aside the said industrial awards, held that, firstly, the appellant had abandoned her services with the respondent No.2, and; secondly, in any event, she had been adequately compensated in compliance of Section 25F of the Industrial Disputes Act (the Act) and, hence, there was no illegal termination of her services by the respondent No.2. The respondent has also been granted restitution of all amounts received by the appellant in excess of Rs. 8,17,071/- and permitted to take necessary proceedings for the same.
6. The undisputed facts are that the appellant, at the relevant time, was serving with the respondent No.2 bank as “Senior Confidential Secretary” since 23.04.1992. She had initially been appointed as a “Lady Confidential Secretary” in the year 1986. The appellant was in service of the respondent No.2 during the period between 10.03.1986 and 01.10.2005. At the relevant time, the appellant was posted with one Ms. Nancy Dickinson, Senior LPA4672017 Page 2 of 13 Manager, Delhi, who proceeded on sabbatical leave without it being for a fixed period. Consequently, the respondent Bank made offers to adjust the appellant in other roles within its organization. Correspondence followed but, admittedly, the appellant did not take up any of the offered positions. Consequently, the appellant’s services were terminated by the management vide its letter dated 01.10.2005.
7. The appellant, consequently, raised an industrial dispute regarding her termination, which she claimed was illegal. The CGIT vide its award dated 01.06.2009, firstly, held that the appellant is a “workman” under Section 2(s) of the Act. The CGIT further held that the termination of the services of the appellant was without giving her full terminal benefits and, therefore, neither just nor legal. Consequently, the CGIT reinstated the appellant in service with continuity, along with consequential benefits, including full back wages.
8. The respondent bank, assailed the said award dated 01.06.2009 before this Court vide W.P.(C.) No.11344/2009. This Court, vide its order dated 22.03.2013 remanded the case back to the CGIT for a fresh decision on the issue whether the appellant was a “workman”. The writ petition was, however, kept pending and adjourned sine die to await the said determination. Consequently, the CGIT again examined the said issue and vide its award dated 15.07.2015 again returned the finding that the appellant was a “workman”. Accordingly, the same relief was granted to her, as granted by the earlier award dated 01.06.2009.
9. After the second award dated 15.07.2015 was received, the hearing in LPA4672017 Page 3 of 13 the writ petition proceeded. The submission of the respondent bank, before the learned Single Judge was, firstly, that the appellant had abandoned her service inasmuch, as, she did not join either of the four alternative jobs offered to her by the respondent bank. Having refused to serve in either of the four posts offered to her, such conduct tantamounted to abandonment of her services by the appellant and, thus, the appellant was not entitled to plead violation of Section 25F of the Act since she could not have claimed to be “in continuous service for not less than one year under an employer” at the time of her termination. Reliance was placed on Section 25B of the Act which defines the expression “continuous service” for the purpose of Chapter VA of the Act to mean, uninterrupted service which is not interrupted “due to any fault on the part of the workman”. The submission was that the interruption in the appellant’s service was on account of her own fault in not accepting one of the four alternative roles offered to her.
10. Secondly, the respondent contended that, in any event, the appellant had been compensated in terms of Section 25F of the Act at the time of termination of her services by payment of adequate monetary compensation.
11. The learned Single Judge accepted both these submissions of the respondent and, accordingly, quashed the impugned awards. The findings returned by the learned Single Judge in the impugned judgment on the first of the aforesaid two aspects reads as follows: “7. A reading of the aforesaid correspondence and para 3.1 of the statement of claim shows that around four posts were offered to the respondent no.2 by the petitioner and which posts were of Business Development Officer, Customer Service LPA4672017 Page 4 of 13 Officer, Clearing Officer and Banking Services Officer. All the alternative posts offered to the respondent no.2 were not below the monetary pay package being earned by the respondent no.2. Respondent no.2 however expressed her unwillingness to accept any of the above four posts/job opportunities. The issue is that whether by refusing to accept the aforesaid job opportunities, can the respondent no.2 be said to have abandoned the services, and once there is abandonment of services, then it would have to be held that there is no illegal termination of services of the respondent no.2.
8. The respondent no.2 would be justified in refusing to job offers/posts as given to her by the petitioner firstly if the job in question was at a lesser monetary emoluments package than the monetary emoluments package being paid for the post of Senior Confidential Secretary at which the respondent no.2 was working and which post got redundant with Ms. Nancy Dikinson leaving her job, but, this is however admittedly not so. The second reason for refusing the four posts offered to the respondent no.2 by the petitioner could have been if the four jobs were such as to cause serious prejudice to the respondent no.2 i.e a serious legal prejudice. That is also not so because change of job profile which does not in any manner prejudice an employee cannot be said to cause a legal prejudice and hence an employee cannot refuse employment in the alternative jobs offered once the post to which an employee was working had become redundant. An employee cannot refuse the alternative post because the „job profile‟ does not suit the employee. The third reason for the respondent no.2 to refuse to accept job offers given by the petitioner would be if the new posts/jobs had required a special technical qualification/ability. Though Section 25E(i) of the Act does not specifically apply, inasmuch as the said provision pertains to lay-off and not retrenchment, yet it is seen that the spirit of this provision will apply because as per this provision an employee cannot refuse an alternative employment if the alternative employment does not call for any special skill or previous experience, and the new job can be done by the workman, with the fact that the LPA4672017 Page 5 of 13 wages or monetary package being paid to the employee are/is the same in the alternative employment as were being earlier paid to the workman. None of the four jobs offered to the respondent no.2 by the petitioner required any technical qualification of a degree or diploma or any special skill or previous mandatory experience, and therefore, once monetary emoluments payable in the new job offered were same or more than the existing monetary package of the petitioner, and the petitioner would not suffer any grave legal prejudice with the aspect that there was no technical qualification or skill required in the new jobs, consequently, the respondent no.2 was completely unjustified in refusing to accept the alternative employments given the respondent no.2 deliberately refuses to join services with the petitioner, she is deemed to have abandoned her job with the petitioner.” the petitioner. Once to her by 12. We may observe that the learned Single Judge before returning the aforesaid finding set out in extenso, the correspondence exchanged between the parties relating to the offers made by the respondent in respect of the four alternate positions.
13. The learned Single Judge supported his finding by placing reliance on the decision of the Supreme Court in U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh, (2014) 4 SCC268 wherein the Supreme Court explained the meaning of the expression “continuous service” defined in Section 25B of the Act. The learned Single Judge held: “10. The pre-condition for applicability of Section 25F which provides the condition precedent to retrenchment of a workman is that an employee/workman has been in continuous service, and as so specifically stated in this Section. Therefore, once LPA4672017 Page 6 of 13 is no continuous service, inasmuch as, there the workman/employee had abandoned the services i.e illegally refused to perform the services by not joining the alternative jobs/employments offered, therefore, respondent no.2 having abandoned her services, and there being no continuous service of the respondent no.2 with the petitioner, hence there is no illegal termination of services of the respondent no.2 by the petitioner. It is therefore held that the respondent no.2 had abandoned her services with the petitioner and hence there does not arise an issue of respondent no.2‟s services being illegally terminated by the petitioner.” 14. The learned Single Judge then proceeded to consider whether, at the time of termination of the appellant, the respondent had, in any event, complied with Section 25F of the Act. The two mandatory conditions that the respondent was obliged to comply with are the ones contained in Clauses (a) and (b) of Section 25F. Compliance of Clause (c) of Section 25F is not mandatory in terms of the judgment of the Supreme Court in Pramod Jha and Others Vs. State of Bihar and Others, (2003) 4 SCC619 15. The learned Single Judge then proceeded to determine, as to what amount the appellant would have been entitled to upon her retrenchment on 01.10.2005. The appellant had been paid an amount of Rs.8,17,071/- at the time of issuance of the termination letter dated 01.10.2005. The yearly monetary package of the appellant w.e.f. 01.10.2004 was also taken into consideration by the learned Single Judge. After applying the formula for payment of compensation, as laid down in Section 25F of the Act, the learned Single Judge, inter alia, observed in paragraph 13 of the impugned judgment: LPA4672017 Page 7 of 13 “(iii) Respondent no.2 could not dispute by any worthwhile argument the fact that the monetary package given to her of Rs.8,17,071/- would cover not only one month’s notice pay but also 15 days pay for every year of service of the respondent no.2 with the petitioner. In fact the amount of Rs.8,17,071/- is much above the amount which the respondent no.2 was entitled to under sub-sections(a) and (b) of Section 25F of the Act. It is therefore held that petitioner has rightly and legally retrenched the respondent no.2, and which conclusion is by proceeding on the basis that the respondent no.2 has not abandoned her services with the petitioner whereas the fact of the matter is that the respondent no.2 had abandoned her services with the petitioner, and as discussed in detail while deciding first head of arguments stated above.” 16. The learned Single Judge also records that after the submissions were heard on behalf of the petitioner and the respondent, a suggestion was made to the appellant to settle her disputes with the respondent bank since she had received an overall amount of Rs.1,07,73,736/-, which was about 13 to 14 times of her legal entitlement. However, the appellant was not agreeable to the said settlement. Consequently, the learned Single Judge disposed of the writ petition with the following direction: “16. In view of the aforesaid discussion, the impugned Awards dated 1.6.2009 and 15.7.2015 are set aside. It is also held that respondent no.2 had abandoned her services with the petitioner and hence there was no illegal termination of her services by the petitioner. Even assuming for the sake of arguments that respondent no.2 was a workman whose services had to be retrenched only on compliance of the requirements of Section 25F, in such a case, the petitioner is found to have complied with the legal requirements inasmuch as the monetary package paid to the respondent no.2 by the petitioner is such that it is in fact more than the total amounts which are payable to the LPA4672017 Page 8 of 13 respondent no.2 under sub-sections (a) and (b) of Section 25F of the Act. Writ petition is accordingly allowed and disposed of. Since the respondent no.2 has received the amounts from the petitioner much beyond her legal entitlement, all such amounts which are received by the respondent no.2 from the petitioner in excess of Rs.8,17,071/- are bound to be restituted by the respondent no.2 to the petitioner and petitioner can take necessary proceedings for restitution in accordance with law.” 17. The appellant, who appears in person, firstly, submits that in the writ petition preferred by the respondent bank, the subsequent award dated 15.07.2015 had not been specifically assailed.
18. We do not find any merit in this submission for the reason that the initial award dated 01.06.2009 had been assailed in the said writ petition and the matter was remanded back to the CGIT to re-adjudicate on the issue as to whether the appellant was a “workman” or not. The writ petition was kept pending to await the fresh finding of the CGIT. The parties and the Court were, therefore, of the view that if the finding on the said issue is again returned in favour of the appellant, the writ petition would be heard on merits. However, if the said finding were to come in favour of the respondent Bank, the initial award would also not survive, and the writ petition would have become infructuous.
19. The second award had been made upon the aforesaid remand. The second award was the same as the first award, since the same findings were returned therein and, in fact, even the basis on which the two awards were made was the same. The parties had proceeded with the hearing of the writ petition after the second award dated 15.07.2015 had been rendered, and the LPA4672017 Page 9 of 13 same was evidently brought on record in the writ proceedings. The learned Single Judge examined the fundamental issue as to whether the appellant was in “continuous service” as defined in Section 25B in the face of alleged abandonment of her service, and whether the appellant had been adequately compensated in terms of the Section 25F at the time of termination of her service on 01.10.2005.
20. Strict rules of procedure, in any event, do not apply to writ proceedings. Apparently, the appellant did not raise any such technical objection at the time of hearing of the writ petition and, thus, she is precluded from raising the same in the present appeal. In any event, since the foundation of the award dated 01.06.2009 (which, admittedly, was in challenge) was set aside by the learned Single Judge, the subsequent award dated 15.07.2015 also cannot survive, since it is founded upon the same premise, namely that the appellant was in “continuous service” at the time of her retrenchment, and that her retrenchment was not in accordance with Section 25F of the Act. Both these premises have been upset by the learned Single Judge.
21. In respect of the first finding returned by the learned Single Judge, the appellant has not pointed out any error in the impugned judgment. The correspondence exchanged between the parties in relation to the alternate jobs offered to the appellant, which have been extensively set out in the impugned judgment itself, show that the appellant was being unreasonably picky. Not only were her pay and allowances protected by the respondent while offering her alternate jobs, the jobs did not require any special skill LPA4672017 Page 10 of 13 which she did not possess. It could not be said that the jobs offered to her, namely, of Business Development Officer, Customer Service Officer, Clearing Officer, and Banking Service Officer, were the jobs/ posts having lower status than the one she was performing viz. of “Senior Confidential Secretary”. They had the same status, if not higher, than that occupied by the appellant at the time of her retrenchment. The appellant has not been able to point out, as to how she could not have performed either of the said four jobs offered to her. Thus, it appears to us that the appellant was actually not interested in continuing with her services, and she resorted to nit-picking only as an excuse to not re-join her services with the respondent bank.
22. We are of the view that the learned Single Judge has correctly enumerated the possible justifications, that the appellant could have had for rejecting the said four offers made to her and none of the said justifications existed in the present case. We are, thus, of the view that the learned Single Judge has rightly concluded that the appellant had abandoned her job and she could not have been said to be in “continuous service” in terms of Section 25B at the time of her retrenchment. It was essential for the appellant to be in “continuous service” at the time of her termination to invoke Section 25F of the Act.
23. The appellant has also not advanced any submission before us to assail the second finding returned by the learned Single Judge, namely that she had been adequately compensated at the time of her termination/ retrenchment on 01.10.2005. She has not even contended, that she had not LPA4672017 Page 11 of 13 received the amount of Rs.8,17,071/- at the time of her termination, or that she was entitled to a larger amount under Section 25F at the time of her termination/ retrenchment on 01.10.2005. She has not even ventured to place any facts or figures before us, to dispute the findings returned by the learned Single Judge on the second issue taken note of hereinabove.
24. The appellant has, lastly, pointed out that the learned Single Judge has gravely erred in directing restitution of amounts in excess of Rs.8,17,071/-. She submits that she was paid amounts under Section 17B of the Act, in terms of the orders passed by the learned CGIT and by this Court. She has pointed out that her subsistence allowance was fixed by the CGIT at Rs.30,000/- per month on 30.06.2006 pending disposal of the reference. The said order was upheld by this Court on 24.09.2008. She had also been awarded litigation expenses of Rs.25,000/- by this Court on 15.12.2006. A Division Bench of this Court confirmed the grant of subsistence allowance at the rate of Rs.30,000/- per month vide order dated 02.12.2008 till disposal of the final award. She submits that on 18.03.2009, even the Supreme Court upheld the interim award dated 03.06.2006. She points out that even in the writ petition preferred by the respondent, orders were passed under Section 17B of the Act in favour of the appellant. She submits that the amounts paid to the appellant under Section 17B of the Act and towards litigation expenses, in any event, could not have been directed to be restituted, even if the two awards made by the CGIT were to be set aside.
25. The respondent bank is not in a position to dispute the settled position, that amounts received by workman under Section 17B of the Act LPA4672017 Page 12 of 13 cannot be restituted, merely on account of the fact that the award made in favour of the workman is eventually set aside. It was not the respondent’s case that the appellant was gainfully employed after her termination, or for any period thereafter. Consequently, recovery of the amounts paid under Section 17B or towards litigation expenses, in any event, could not have been directed. Thus, the operative direction issued by the learned Single Judge, in our view, needs modification.
26. Consequently, while upholding the impugned judgment, we order that the appellant shall not be required to restitute the amount of Rs.8,17,071/-; the litigation expenses ordered to be paid to the appellant, and; the amounts directed to be paid to the appellant, and received by her, under Section 17B of the Act.
27. Subject to the aforesaid modification of the impugned judgment, the present appeal stands dismissed. VIPIN SANGHI, J.
REKHA PALLI, J.
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