Important Case Laws on Absence and Abandonment

1.       Modi Industrial Limited V. State of U.P. and others [(1992) 64 All. F.L.R. 471]
It was held that 'if the workmen have not worked although the work was offered to them, then, they are not entitled to claim wages.'

2.       Kothari (Madras) Limited V. Second Additional District Judge-cum-Appellate Authority and others [1990 Vol.76 F.J.R. 209]
It is held that 'if the absence from duty is due to coercion and the workman is not consenting party, then, the Management has no right to deduct wages.'

3.       V. Ramachandran vs Indian Bank on 6 October, 1978 [(1979) ILLJ 122 Mad]
"Our above decision is not to be understood that in every case, though with full justification, if an employee leaves his desk the employer will be entitled to deduct wages during the period of absence."

4.       Algemene Bank Nederland vs Central Government Labour Court [(1978) IILLJ 117 Cal]

Under Article 610, Halsbury has noted that if there were normal working hours and the employee's remuneration for employment in those hours whether by the hour or week or other period, did not vary with the amount of the work done in the period, the employer is liable to pay the employee for the normal working hours as much as the amount which would have been payable if the employee had been employed throughout the part of the normal working hours during which he was ready and willing to work but no work was provided for him by his employer or he was incapable of work because of sickness or injury or if he was absent from working in accordance with the terms of his employment relating to holidays.

5.       R. Rajamanickam, For Himself And vs Indian Bank [(1981) IILLJ 367 Mad]

At the first blush the rule which would normally appeal to any sense, judicial or common, is that it is inequitous besides being opposed to the norms of contractual obligations to make the employer pay the employee when the employee has not discharged his obligations under the contract with reference to the quantum of service expected to him. To put it the other way, it is not at all justifiable to make the employer pay for services not rendered by the employee. The development of law on this subject by judicial precedents, though not uniform, has, to a very great extent, recognised the rule "No work, no pay".

6.       A.M. Chokalinga Mudaliar vs G. Mahomed Sheriff Saib [(1912) 23 MLJ 680]

It was held that the employee is entitled to recover wages for the 11 months during which he did service, there being no allegation in the written statement that by reason of his not working during the last 10 days of the stipulated period of one year, the employer sustained any damages, which he is entitled to set off. The learned Judge held that the Court should not be too strict in treating the contracts of service for a certain period and for a certain wages as indivisible; servants are entitled to wages for the full months during which they did service and that the presumption that the work agreed to be done is indivisible and the wages to be given for such work is also indivisible is not in most cases in conformity with equity.

7.       Nutan Mills Ltd. v. Employees State Insurance Corporation, [1956-1 L.L.J. 215]

The learned Judges found that during the period of lay-off the contract of employment, although not necessarily at an end, is not a subsisting and effective contract and if the contract of employment is suspended, then there is no obligation upon the employee to serve the employer, nor is there a reciprocal obligation upon the employer to pay wages. The learned Judges pointed out that the test is that the employee must be under an obligation to serve his master and consequently the employer must be under an obligation to pay wages and if the relationship of master and servant was suspended, then the suspension must involve the suspension of the payment of wages.

8.       The Karnataka State Road vs Karnataka State Road Transport [ILR 2004 KAR 2497, 2004 (3) KarLJ 238, (2004) IILLJ 891 Kant]

It is not enough that the employees attend the place of work. They must put in the work allotted to them. It is for the work and not for their mere attendance that the wages/salaries are paid.

9.       Monoj Kanti Bose vs Bank of India [(1977) IILLJ 285 Cal]

 Absence from duties on the above date by the award staff who did not obtain prior sanction of leave should be treated as leave without pay.

10.   Secretary of State v. Associated Society of Locomotive Engineers and Firemen [[1972] (Vol. II). All ER at page 949] – Cited in Apar (Pvt.) Limited vs S.R. Samant [1980 (41) FLR 213, (1980) IILLJ 344 Bom]

“Suppose I employ a man to drive me to the station. I know there is sufficient time, so that I do not tell him to hurry. He drives me at a slower speed than he need with the deliberate object of making me lose the train, and I do lose it. He may say that he has performed the letter of the contract: he has driven me to the station; but he has wilfully made me lose the train, and that is a breach of contract beyond all doubt. And what is more, he is not untitled to be paid for the journey. He has broken the contract in a way that goes to the very root of the consideration; so he can recover nothing."”

11.   Bank Of India vs T.S. Kelawala [1990 SCR (3) 214, 1990 SCC (4) 744]

There is no dispute that although the service regulations do not provide for a situation where employees on a mass scale resort to absence from duty for whole day or a part of the day whether during crucial hours or otherwise, they do provide for treating an absence from duty of an individual employee as a misconduct and for taking appropriate action against him for such absence.

12.   Buckingham and Carnatic Co. Ltd. v. Workers of the Buckingham and Carnatic Co. Ltd., [1953] SCR 219

It would be absurd to hold that non-permitted absence from work even for half an hour or less in the course of a working day would be regarded as interruption of service of a workman for the purpose of the said section (i.e., Section 49-B(1) of the Factories Act). We are inclined to hold that the stoppage of work for the period for about 2 to 4 hours in the circumstances of the ease is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned.

13.   Secretary of State v. Associated Society of Locomotive Engineers and Firemen [[1972] (Vol. II). All ER at page 949] – Cited in Bank Of India vs T.S. Kelawala [1990 SCR (3) 214, 1990 SCC (4) 744]

Lord Denning MR observed: "It is equally the case when he is employed as one of many's to work in an undertaking which needs the service of all. If he, with the others, takes steps wilfully to disrupt the undertaking to produce chaos so that it will not run as it should. Then each one who is a party to those steps is guilty of a breach of his contract. It is no answer for any one of them to say 'I am only obeying the rule book', or 'I am not bound to-do more than a 40 hour week'.

Lord Templeman stated "The consequences of counsel's submissions demonstrate that his analysis of a contract of employment is deficient. It cannot be right that an employer should be compelled to pay something for nothing whether he dismisses or retains a worker. In a contract of employment wages and work go together. The employer pays for work and the worker works for his wages. If the employer declines to pay, the worker need not work. If the worker declines to work, the employer need not pay. In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work."

14.   V. Ganesan vs The State Bank Of India [21 November, 1980]

It is on this fact that the learned Judge held that the right to deduct salary (obviously for the whole day) on the principle of "no work no pay" could be exercised only when there was a term in the contract or when there was a statutory provision to that effect.

15.   Uptron India Ltd. vs. Shammi Bhan [1998 (6) S.C.C. 538]
In this case it was held that such a standing order conferred a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It was held that the discretion had to be based on an objective consideration of all circumstances and material which may be available on record. It was held that questions which would naturally arise are what circumstances compelled the employee to proceed on leave, why he overstayed leave, was there any just and reasonable cause for overstaying leave, whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime fallen ill. It was held that such questions could only be answered by the management provided it was inherent in the provision that the employee against whom action was proposed to be taken on the basis of such a provision was given an opportunity of hearing. It was held that principles of natural justice had to be read into such a clause and the principles of natural justice had to be complied with.
16.   Bhuna Co-Operative Sugar Mill Ltd vs Mohinder Singh [2001 (90) FLR 179, (2001) ILLJ 494 P H, (2000) 126 PLR 548]

It was held that the onus to prove abandonment was on the management.

17.   D.K. Yadav vs J.M.A. Industries Ltd [1993 SCR (3) 930, 1993 SCC (3) 259]

The Supreme Court in many words rejected the contention put forth by the management that employee's eight days absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service. The Supreme Court declared that such a contention bears no substance. It is observed that striking of the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consecutive day’s cannot automatically amount to misconduct and termination of service on such grounds without complying with minimum principles of natural justice would not be justified.

18.   Management of Continental vs Workmen Of Continental [ILR 2004 KAR 54, (2003) IIILLJ 612 Kant] – “A VERY IMPORTANT CASE LAW”

A contract of employment can be determined under a number of circumstances such as death, impossibility, frustration, abandonment, voluntary retirement, superannuation, retrenchment, discharge under the contract, discharge on transfer or closure of the establishment, and dismissal or removal by way of punishment. Therefore if it is proved that an employee voluntarily abandoned the job, then, the contract of employment between such employee and the management comes to an end. The contract of service comes to an end where the employee abandons his job.

The term "abandonment of service" has not been defined in the Rules. In RANDOM HOUSE DICTIONARY, the word "abandonment" has been explained to mean "to leave completely and finally, forsake utterly, to relinquish, to renounce, to give up all concern in something".

According to ENGLISH LAW DICTIONARY by EARL LOVITT (1959) Edition, abandonment when used in relation to an office, according to BLACK'S LAW DICTIONARY means "Voluntary relinquishment". In order to constitute abandonment, therefore, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. Abandonment must be total and under the circumstances, it should clearly indicate an absolute relinquishment.

Abandonment may be actual or can be imputed. Abandonment or relinquishment of service is a question of intention, and normally such intention is not attributed to an employee in the absence of adequate and substantial evidence in that behalf. However, the intention may be inferred from the acts and conduct of the employee.

The question whether an employee has abandoned the employment or not is a question of fact which is required to be resolved in the light of facts and circumstances of each case. There cannot be any strait-jacket formula in that regard. Temporary or short absence, perhaps, may not constitute an abandonment of an office. The length of absence and other attending facts and circumstances of the case may lead to an inference that an employee has voluntarily abandoned the employment.

Under Common Law, an inference that an employee has abandoned or relinquished his service is not easily drawn unless from the length of absence and from the surrounding circumstances an inference to that effect can be legitimately drawn. But, in those cases, where parties agree upon the terms and conditions of service and they are included in Certified Standing Orders or in Service Rules, the doctrine of Common Law would not be relevant.


Post a Comment