# Tech. Mahindra Ltd., G.B. Nagar v. The Presiding Officer, Labour Court, Noida & Ors

- **Citation:** (2023) 6 ILRA 874
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Writ-C No. 12616 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tech-mahindra-ltd-g-b-nagar-v-the-presiding-officer-labour-court-noida-ors-50466
- **Pages:** 7

## Headnote

A. Labour Law - Termination - Principle of
natural justice - Application - No charge
sheet was supplied nor any disciplinary
6 All. Tech Mahindra Ltd., G.B. Nagar Vs. The Presiding Officer, Labour Court, Noida & Ors.
875
inquiry was conducted - Effect - Labour
Court allowed the claim of workman -
Legality challenged by employer - Held,
prior to termination of services of a
workman
the
minimum
mandatory
requirement is to inform him of the
charges
by
issuing
charge
sheet
followed by domestic inquiry where the
workmen has an opportunity to present
his justification against the charges
levelled against him - It is only after
sufficient opportunity is given to the
workman can his services be terminated
- Shri Karan Singh's case relied upon.
(Para 7 and 14)

B. Labour Law - Writ - Ground of
latches raised for the first time -
Permissibility
-
Labour
court
proceedings was initiated after a period
of 4 years from the date when his
services were terminated - No ground
regarding latches was raised before the
labour court
- Effect
- Held, the
petitioners not having raised the plea of
latches before the labour court and
before this Court as well as there being
no pleadings or grounds raised by the
petitioner in the present writ petition,
precludes this Court from adjudicating
the said issue. (Para 15)

C. Constitution of India,1950 - Article 226
- Judicial review - Scope - The power
exercised by the High Court under Article
226, while judicially reviewing the order
of labour court, is limited to the examining
the procedural impropriety or an error
apparent on the face - It is also settled
proposition of Law is that the power of
judicial review under article 226 is not
against the decision but the decisionmaking process. (Para 15)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

874 INDIAN LAW REPORTS ALLAHABAD SERIES
of their choice either at Allahabad or
Lucknow, it does not give them a kangaroo
right to hop around jurisdiction at their
whims. It is not only their convenience,
which is to be looked into, but convenience
of all related is also relevant, including that
of Court. Facts of this case are a glaring
example of the same. The difficulty being
faced by this Court is created by petitioners
only.

18. The petitioners have a choice to
invoke jurisdiction of the Court either at
Allahabad or at Lucknow and once they
have exercised the said choice, parties
should restrict themselves to their initial
choice of forum while filing later petitions.
Hopping around forum would be highly
inconvenient to the working of the Court as
in the present case. Once petitioners choose
jurisdiction, out of many available, in
normal course, they should stick to the
same, unless they can explain reasons for
changing the same.

19. It was repeatedly put to learned
counsel for petitioners to explain as to why
after repeatedly choosing High Court at
Allahabad,
petitioners
have
chosen
Lucknow for filing present writ petition.
Learned counsel for petitioners only replied
that it is the discretion and choice of
petitioners and this Court cannot interfere
in the same. This Court is not satisfied with
the reply of learned counsel for petitioners.

20. In the given facts and circumstances
where it is not clear to this Court as to
whether primary question with regard to
maintainability is involved in view of
withdrawal of earlier writ petition, which
appears to be without any liberty, this Court
finds it appropriate to refuse to exercise its
discretionary jurisdiction in permitting the
petitioners to maintain present writ petition at
Lucknow and finds Allahabad as appropriate
forum for this petition.

21. It was also offered to learned
counsel for petitioners if he would like to get
the matter listed before the Chief Justice
under Clause 14 of the United Provinces
High Court (Amalgamation) Order, 1948 for
transfer of present petition to Allahabad.
Learned counsel for petitioners refused the
offer and again reiterated that it is petitioners'
right to choose jurisdiction and they cannot
be forced out of Lucknow.

22. Since this Court is not inclined to
entertain this writ petition at Lucknow,
therefore, present writ petition is dismissed. It
shall, however, be open for petitioners, in
case they so desire, to file a petition at
Allahabad.
----------
(2023) 6 ILRA 874
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 12616 of 2023

Tech. Mahindra Ltd., G.B. Nagar
 ...Petitioner
Versus
The Presiding Officer, Labour Court, Noida
& Ors. ...Respondents

Counsel for the Petitioner:
Gunjan Jadwani, Sri Chandrika Patel, Sri
M.S. Vinayak, Sri Karunanidhi Yadav

Counsel for the Respondents:
C.S.C., Sri Shekhar Srivastava

A. Labour Law - Termination - Principle of
natural justice - Application - No charge
sheet was supplied nor any disciplinary
6 All. Tech Mahindra Ltd., G.B. Nagar Vs. The Presiding Officer, Labour Court, Noida & Ors.
875
inquiry was conducted - Effect - Labour
Court allowed the claim of workman -
Legality challenged by employer - Held,
prior to termination of services of a
workman
the
minimum
mandatory
requirement is to inform him of the
charges
by
issuing
charge
sheet
followed by domestic inquiry where the
workmen has an opportunity to present
his justification against the charges
levelled against him - It is only after
sufficient opportunity is given to the
workman can his services be terminated
- Shri Karan Singh's case relied upon.
(Para 7 and 14)

B. Labour Law - Writ - Ground of
latches raised for the first time -
Permissibility
-
Labour
court
proceedings was initiated after a period
of 4 years from the date when his
services were terminated - No ground
regarding latches was raised before the
labour court
- Effect
- Held, the
petitioners not having raised the plea of
latches before the labour court and
before this Court as well as there being
no pleadings or grounds raised by the
petitioner in the present writ petition,
precludes this Court from adjudicating
the said issue. (Para 15)

C. Constitution of India,1950 - Article 226
- Judicial review - Scope - The power
exercised by the High Court under Article
226, while judicially reviewing the order
of labour court, is limited to the examining
the procedural impropriety or an error
apparent on the face - It is also settled
proposition of Law is that the power of
judicial review under article 226 is not
against the decision but the decisionmaking process. (Para 15)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Punjab & Sindh Bank & ors. Vs Sakattar
Singh; (2001) 1 Supreme Court Cases 214

2. Regional Manager, Bank of Baroda Vs Anita
Nandrajog; 2009 (9) SCC 462.
3. Dinesh Kumar Singh Vs Presiding Officer,
Labour Court, Agra; 2005 ALL LJ 732

4. Writ C No. 39842 of 2019; Shri Karan Singh
Vs Presiding Officer, Labour Court & anr.

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri M. S. Vinayak, learned
counsel for the petitioner, Sri Karunanidhi
Yadav as well as learned Standing counsel
for respondent no.s 1 and 2, Sri Shekhar
Srivastava for respondent No.3-workman.

2. By means of the present writ
petition the petitioner has assailed the
award
dated
24.11.2022
passed
by
Presiding Officer, Labour Court, Noida,
District Gautam Buddha Nagar, U.P.
whereby allowing the claim of respondent
No.3-workman.

3. The facts in brief arising in the
present case are that respondent No.3 was
employed on the post of Assistant in Grade
GO at the establishment of the petitioner
company at Pune, Maharashtra and was
issued appointment letter on 30.3.2004. As
per the appointment letter he was to work
in Noida and it was further provided that
the services of respondent NO.3 would be
terminated by either party by serving prior
written notice. It was further provided in
the appointment letter that the services of
the
respondent-workman
would
be
transferable and he could be transferred to
any of the establishments of the petitioner
whether in India or abroad. The petitioner
continued to work since the date of his
appointment till 5.12.2008 when his
services were transferred to Chennai
Branch of the petitioner. He was asked to
join at Chennai by 11.12.2008. Respondent
No.3 did not join at Chennai and according
to the petitioner he had remained absent
unauthorisedly. He was asked by means of
876 INDIAN LAW REPORTS ALLAHABAD SERIES
letter
dated
15.12.2008
as
well
as
22.12.2009 to join at Chennai failing which
it will be assumed that he is not interested
in continuing with his services and his
services will be dispensed with. Despite the
fact that the respondent did not join at
Chennai an order of termination was passed
on 2.1.2009. As per the order of 2nd
January, 2009 issued by Group Manager,
Human Resources it was stated that ample
opportunity was given to the respondent to
report at Chennai office but he has neither
reported nor made any communication and,
therefore, his services are terminated with
immediate effect.

4. Respondent No.3 being aggrieved
by the termination order dated 2nd January,
2009 raised an industrial dispute before
Labour Court, Noida, which was duly
referred and according to the reference it
was stated that respondent No.3 was
working on the post of driver and his
services have been terminated with effect
from 2nd January, 2009 and the labour
court was called upon to test the validity of
the termination order. Notices were issued
to the petitioner who appeared and opposed
the claim of the respondent. In the written
submissions filed before the Labour Court
it was stated that the respondent was
appointed on 30.3.2004 and was transferred
to Chennai office vide order dated
5.12.2008 he was supposed to report by
11th December, 2008 but he did not report
to the said office. It is further stated that by
not
joining
at
Chennai
office
the
respondent had violated the company's
disciplinary policy. Even previously on a
number of occasions he has also been given
warning letters to join his duties and he has
also absented himself from 5.12.2008
without prior intimation to the petitioner's
Manager. It was further stated that as per
the company policy the petitioner, in fact,
had paid final amount to the petitioner. It
was further stated that termination of the
respondent was legal as per the company
policy.

5. The Labour Court after considering
the said response as well as the evidence
adduced by the workman as well as by the
petitioner had allowed the claim of the
workman and while allowing the said
claim the Labour Court has recorded that
the workman was appointed with petitioner
organization since 30.3.2004 on daily
wages of Rs.11261/- per month. It has
further been stated that allegations were
levelled by the workman that the petitioner
has not given him due wages and he has
been asked to work for more than the
normal working hours and even the wages
for the overtime were due to the respondent
also not paid to him. It was further stated
that in the claim, that no notice or
opportunity of hearing was given to the
workman prior to termination of his
services. It was also averred that the
respondents was a permanent employee and
raised his demands by writing several
letters to the petitioner none of which was
responded to and consequently after
termination of services, having no other
remedy, had approached the Labour Court
raising his grievances.

6. Learned Labour court has also
considered the arguments of the petitioner
with regard to the fact that the respondent
had been transferred to Chennai office vide
order dated 5.12.2008 and was required to
join by 11.12.2008 but the respondentworkman did not comply with the order of
transfer and several warning letters were
also given to him for joining which also
were not obeyed by him and consequently
it was concluded that the respondent is not
willing to work with the petitioner
6 All. Tech Mahindra Ltd., G.B. Nagar Vs. The Presiding Officer, Labour Court, Noida & Ors.
877
company and also considering the fact that
during this period he did not make request
for leave it was concluded that he is not
interested in his employment and has, in
fact, abandoned the same. After coming to
the conclusion that the workman has
abandoned his services his dues were duly
calculated and paid on 2.1.2009 treating
him to have resigned on 16.12.2008.

7. Before the Labour Court the
respondent/workman had examined himself
supporting his claim while on behalf of the
petitioner one Mr. Mukul Sah of the
company was duly examined. The Labour
Court was persuaded by the fact that
admittedly no charge sheet was supplied
nor any disciplinary inquiry conducted
prior to termination of his services which is
in gross violation of the principles of
natural justice which was mandatory before
terminating his services. It is on the
aforesaid premises that the labour court has
allowed the claim of the respondent -
workman and directed the petitioner to
allow claim of the workman within two
months and reinstate the workmen in
service with full back wages and other
benefits to which he is entitled.

8. The first ground which falls for
consideration of this Court is as to whether
in the facts and circumstances of the
present case the respondent workman had
abandoned his services and also whether
the petitioner was justified in terminating
the
same.
Learned
counsel
for
the
petitioner, while assailing the said award
has submitted that the said award is illegal
and arbitrary in as much as the contentions
of the petitioner were not considered by the
labour court in its true perspective. He has
submitted that once it has come on record
that the respondent workman did not join in
pursuance of the order of transfer and had
absented himself without any leave then it
was deemed that he would have abandoned
his services and they were fully competent
and it was within their jurisdiction to
terminate the services of the respondent
workman. In support of his submissions
learned counsel for the petitioner has relied
upon series of judgments. The first is the
case of Punjab and Sindh Bank and
others Vs. Sakattar Singh, (2001) 1
Supreme Court Cases 214 as well as
Regional Manager, Bank of Baroda Vs.
Anita Nandrajog, 2009 (9) SCC 462. In
both these matters where the workman had
remained unauthorized absent and did not
report for duty within thirty days as per the
conditions contained in clause XVI of IV
of the bipartite settlement, their services
were terminated and the said termination
was upheld by the Supreme Court relying
upon the bipartite settlement entered into
between the workers union and the bank.

9.

Learned
counsel
for
the
respondents has opposed the contention of
the petitioner. He submits that it is settled
principles of law that in case the services of
the workman is required to be terminated
then statutory provisions contained in
Section 6N and 6(P) of the Industrial
Disputed Act, 1947 have to be followed.
According to Section 6N it is clearly
provided that either one month's notice has
to be given in writing citing the reasons for
retrenchment and wages in lieu of the
notice have to be granted. The reasons for
termination are stated in the order of
termination
according
to
which
the
petitioner did not join in pursuance of this
transfer and consequently his services were
terminated. Admittedly no domestic inquiry
was conducted by the petitioner, nor any
show cause notice was given to the
workman prior to termination of his
service. The notice which was given by the
878 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner to the respondent -workman on
15.12.2008 or 22.12.2008 cannot be held to
be a notice given during the domestic
inquiry. They were only the notices
requiring him to join at Chennai.

10. Considering the submissions
made by the petitioner that they were
justified in terminating the services on the
ground of abandonment of service, it is
noticed that the respondent workman
stopped reporting for work from the date of
his transfer i.e 05/12/2008. The petitioner
had sent 2 notices on 15/12/2008 and on
22/12/2008, but he still did not report for
work and consequently by order dated
02/01/2009 the order of termination was
passed. It is noticed that the respondent
workman did not report for work for nearly
3 weeks, when the order of termination was
passed. It is further noticed that there is
difference between absent from duty and
abandonment
of
service.
The
claim
entitlement for terminating the services of
the employee on the grounds of an
abandonment of service, it has to be proved
that the services have been abandoned by
the workman, for which there should be
evidence on record indicating the same.
Mere absence from duty for a few days or
nearly 3 weeks as in the present case
cannot be held to be abandonment of
service.

11. The petitioner has relied upon the
judgement of the Supreme Court in the case
of Punjab and Sindh Bank and others Vs.
Sakattar Singh, (2001) 1 Supreme Court
Cases 214 as well as Regional Manager,
Bank of Baroda Vs. Anita Nandrajog,
2009 (9) SCC 462. In both these matters
where
the
workman
had
remained
unauthorized absent and did not report for
duty within thirty days as per the conditions
contained in clause XVI of IV of the
bipartite settlement, their services were
terminated and the said termination was
upheld by the Supreme Court relying upon
the
bipartite
settlement
entered
into
between the workers union and the bank.
In the said case Supreme Court was
amplifying the agreement of bipartite
settlement where there was specific
stipulation with regard to termination of
services of the workman who absented
himself from the duty beyond a particular
period which were also prescribed within
bipartite settlement and accordingly the
orders of the bank for termination of
services of the employee who absent
themselves for more than the prescribed
period in the bipartite agreement was
upheld by the Supreme Court.

12. I have gone through the aforesaid
judgments and am of the considered
opinion that the said decision are clearly
distinguishable from the facts of the present
case where no such stipulation or contract
exists between the workman and the
petitioner where it is provided that in case
he absents himself more than a particular
period he will be deemed to have
abandoned his services and it shall be open
for the employer to terminate his services.

13. Learned counsel for the petitioner
has further relied upon the judgment of a
coordinate Bench of this Court in the case
of Dinesh Kumar Singh Vs. Presiding
Officer, Labour Court, Agra reported in
2005 ALL LJ 732. In the said case the
employer had stated that he had never
terminated the services of the workman
who had, in fact had himself abandoned his
service. Even in the said case labour court
has also given a categorical finding that the
petitioner therein had abandoned his
services and the services had never been
terminated and, hence it was concluded that
6 All. Tech Mahindra Ltd., G.B. Nagar Vs. The Presiding Officer, Labour Court, Noida & Ors.
879
there was no retrenchment of the services
of the workman. The said case is
distinguishable on facts as in the present
case the order of termination has been
passed by the petitioner on 02.01.2009. The
said letter is titled as order of termination it
has been clearly stated that the service of
the petitioner stand terminated. Once an
order of termination has being passed, it's
validity would be looked into by the
Labour court, and in the present case, the
labour court has concluded that the order of
termination is illegal and arbitrary as no
opportunity of hearing or any domestic
enquiry held prior to passing of the said
order.

14. I find force in the contention made
on behalf of the respondent that even if it
was assumed that the workman had
abandoned his services it was mandatory
for the petitioner to have conducted a
domestic inquiry before terminating his
services. Even abandonment of service is
disputed question of fact which is to be
proved, which could have been done in a
domestic
inquiry
could
have
been
conducted by the petitioner. In support of
his submissions in this regard he has relied
upon the judgment of this Court in the case
of Shri Karan Singh Vs. Presiding
Officer, Labour Court and another, passed
in Writ C No.39842 of 2019. Prior to
termination of services of a workman the
minimum mandatory requirement is to
inform him of the charges by issuing
charge sheet followed by domestic inquiry
where the workmen has an opportunity to
present his justification against the charges
levelled against him. It is only after
sufficient opportunity is given to the
workman can his services be terminated.
The action taken by the petitioner in
terminating the services of the respondent
in absence of such an enquiry and without
granting any opportunity of hearing is
illegal and arbitrary and in violation of
principles of natural justice as rightly held
by the labour court, and consequently, there
is no infirmity in the impugned order.

15. Learned counsel for the petitioner
has also assailed the award on the ground
that the same is barred by principle of
latches inasmuch as the proceedings were
initiated before the labour court after a
period of 4 years from the date when his
services
were
terminated.
We
have
considered the objections raised by the
petitioner opposing the claim preferred by
the respondent workman and find that no
ground regarding delay and latches was
raised by the petitioner before the labour
court, and hence the labour court did not
have an opportunity to examine the said
contention. Even before this Court in the
instant writ petition there is no ground of
latches raised by the petitioner in assailing
the award of the labour court, and therefore
there is no occasion for this Court to
examine the contention raised by the
petitioner inasmuch as the same was not
taken before the labour court, nor is there
any pleading in this regard in the present
writ petition to examine the same. The
power exercised by this Court under Article
226 of the Constitution of India, while
judicially reviewing the order of labour
court, is limited to the examining the
procedural impropriety or an error apparent
on the face. It is also settled proposition of
law is that the power of judicial review
under article 226 is not against the decision
but the decision-making process. The
petitioners not having raised the plea of
latches before the labour court and before
this Court as well as there being no
pleadings or grounds raised by the
petitioner in the present writ petition,
precludes this Court from adjudicating the
880 INDIAN LAW REPORTS ALLAHABAD SERIES
said issue. Accordingly, the arguments of
the petitioner in this regard are rejected.

16. Lastly, it is submitted by learned
counsel for the petitioner that the matter
has been settled between the petitioner and
the respondent workman inasmuch as a full
and final settlement of the dispute has been
arrived at between the petitioner and the
respondents, hence, the writ petition
deserves to be allowed. In support of his
submissions, he relied upon the document
titled as "full and final settlement" annexed
with the writ petition. A perusal of the said
document indicates that an amount of ₹
18,763/- is due to the respondent workman,
which includes various service benefits
including conveyance allowance, house
rent allowance personal allowance etc.
there is no proof whether it has actually
been paid to the respondent workman or
not. The said documents also contains a
receipt but the same is unsigned, which
clearly indicates the same has not been
accepted by the respondent workman, or it
was never tendered by the petitioner to the
workmen. It is further noticed that in the
objections filed by the petitioner before the
labour court in paragraph No. 10 stated
that:-

"Further, as per policy of the
company if so Respondent company had
prepared applicant's full & final settlement
and given outstanding full & final amount
to the applicant ".

17. There is clearly a variation in the
stand of the petitioner before the labour
court and before this Court. Before the
labour court there was no mention that the
full and final settlement has been accepted
by the respondent workman, and in
paragraph 21 of the instant writ petition it
has been stated that the workman has
signed a voucher in due acceptance of his
dues
on
14/01/2009.
The
document
Annexed in support of the said averments
does not include any signed document by
the
respondent
rather
an
unsigned
document has been annexed. Clearly, from
the above it was not expected from the
petitioner to make false assertions before
this Court. In case the respondent had in
fact signed the said full & final settlement
the same should have been produced before
the labour Court as well as this Court.
Before the labour court it was never stated
that the workmen had accepted the full and
final settlement, and this changed stand
before this Court, clearly appears to be an
afterthought and contrary to the material on
record, and not worthy of being considered
in favour of petitioner. In absence of
acceptance of the said settlement by the
workman it cannot be considered to be an
agreement or a settlement. The arguments
of the petitioner in this regard also rejected.

18. In light of the above, the writ
petition is bereft of merits and is
accordingly dismissed.
----------
(2023) 6 ILRA 880
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-C No. 23756 of 2021

Pallavi Soni ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
A.Z. Siddiqui

Counsel for the Respondents: