Chandra Pal Shukla vs Labour Court (V), State of U.P. and Kanpur Sahkari Milk Board Ltd.

S.U. Khan, J.—Heard learned Counsel for the parties.

This writ petition is directed against award dated 12.9.1984 given by Presiding Officer Labour Court (V) U.P. Kanpur in Adjudication Case No. 20 of 1981.

The case of the workman petitioner was that respondent No. 3 M/s Kanpur Sahkari Milk Board Limited, Nirala Nagar, Kanpur the employer had terminated his services illegally on 5.5.1978.

According to the workman he worked till 4.5.1978 and since 5.5.1978 he was not permitted to join his duty while according to the employer the workman worked only until 3.5.1978 and thereafter he absented himself for four days i.e. 4, 5, 6 and 7 May 1978 hence on 8.5.1978 against his name in the attendance register, it was mentioned that "abandoned the job". The Labour Court held that workman had worked for more than 240 days in a calendar year.

The contention of the employer was that according to the certified standing orders, if a workman remained absent for 4 days his services automatically stood terminated hence there was no need to give any notice or retrenchment compensation to the workman as he had absented for four days. The workman had pleaded that Sri Basant Singh timekeeper refused to assign any job to him. Labour Court did not believe the said version. The Labour Court further held that even if timekeeper had refused to assign any duty to the workman then he should have contacted the higher officer. Labour Court further observed that the first letter was written by the workman on 8.5.1978, which was sent through Union.

The workman had stated that the cause of annoyance of the employer was his demand of payment of wages in the pay scale of Rs. 162-215 while he was being paid only Rs. 5/- per day.

The Labour Court concluded that in accordance with certified standing orders para 10(4) (h), copy of which had been filed before the Labour Court, services of a workman stood automatically terminated if he absented without leave for four days. Labour Court placed reliance upon an authority of Karnataka High Court of 1963 (names of the parties and name of the journal are not clearly mentioned in the award). Accordingly, Labour Court by the impugned award dated 12.9.1984 held that the workman was not entitled to any relief as he abandoned the job due to four days absence i.e. from 4 to 7 May 1978 in accordance with the certified standing orders of the Milk Board (However the Labour Court held that the workman had worked for 240 days in a calendar year).

The Allahabad High Court took a contrary view in J.P. Misra v. Labour Court, Kanpur and Ors. 1997 (76) FLR 110. The point involved in this writ petition is no more res integra as it has been decided by the Supreme Court in Lakshmi Precision Screws Limited v. Ram Bhagat AIR 2002 SC 2914 . The Supreme Court held that even if there is a clause in the standing order providing for automatic termination of services due to absence without leave for some days still doctrine of natural justice is an inbuilt requirement of said clause. The Supreme Court in turn placed reliance upon an earlier authority of the Supreme Court reported in Uptron India Limited Vs. Shammi Bhan and Another, In Uptron''s authority, Supreme Court has gone to the extent of saying that such a clause is bad if it does not purport to provide opportunity of hearing to the employee whose services are treated to come to an end automatically. In view of the aforesaid Supreme Court authority, it was essential for the employer to hear the workman before terminating the services. Unauthorized absence for four days may be misconduct and good ground for termination of service however it must be preceded by departmental proceedings and hearing.

The workman had admittedly completed 240 days in a calendar year and as his services were terminated without any departmental enquiry, provision of Section 6-N of U.P. Industrial Disputes Act was attracted. Termination/ Retrenchment of workman was illegal as the said section was not complied with and admittedly no compensation was paid to the workman. Accordingly the view of the Labour Court that termination of the workman was legal can not be sustained in the eye of law and it is held that termination was illegal.

However, there is absolutely no justification for directing reinstatement after more than 28 years. The Supreme Court in the following authorities has held that even if termination is illegal for non-compliance of Section 6-N of U.P. I.D. Act or 25-F of I.D. Act, still instead of reinstatement award of consolidated damages /compensation is the proper relief.

1 Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and Others, and

2 Haryana State Electronics Development Corporation Ltd. Vs. Mamni,

Accordingly, writ petition is allowed. Award of the Labour Court is set-aside. Termination / retrenchment of the workman petitioner is held to be illegal. However instead of reinstatement, workman is held entitled to consolidated damages of Rs. 15000/- which is to be paid to him as compensation.

Employer respondent No. 3 is directed to pay consolidated damages to the workman petitioner within three months from today failing which 1% per month interest shall be payable since after three months.