Chandra Prakash Pandey vs Bhilai Refractories Ltd.

Satish K. Agnihotri, J.—The petitioner was employed as Machine Tools Operator in the respondent No. 1 Bhilai Refractories Ltd. on 15.1.1980, on probation. The services of the petitioner was confirmed after satisfactory completion of the probation period on 15.7.1981 vide order dated 14.11.1981 (Annexure P/1). The petitioner remained absent for the period from 11.3.2001 to 12.6.2001 on the ground of medical treatment. The petitioner has submitted medical certificate to that effect as Annexure P/2. The respondent without enquiring into the reasons for absence, terminated the services of the petitioner, without issuing even one month''s notice, vide order dated 24.3.2001 (Annexure P/4) under the provisions of Order 16(x) of the Standing Orders of the Bhilai Refractories Ltd.

The petitioner being aggrieved, filed this petition impugning the termination order on the ground that there is a gross violation of the principles of natural justice. The impugned termination order was arbitrary, discriminatory and violative of all cannons of principles of fair play and natural justice.

Shri Sanjay S. Agarwal, learned counsel appearing for the petitioner submits that the principles of natural justice and fair play are inherent in all service conditions. The other provisions of the Standing Orders i.e. Order 36 which provide for discharge and termination of service also contemplates assigning reasons and one month''s notice before taking extreme punishment of termination of an employee from service.

Shri R.M. Solapurkar, learned counsel appearing for the respondent submits that the Order 16(x) of the Standing Orders clearly provides that if a person remained absent from duty for more that 8 days, no notice is necessary and it would be presumed that the concerned employee is not interested in continuing in service. According to learned counsel for the respondent the impugned termination order is legal, just and proper.

After having heard learned counsel for the parties and having perused the records it is evident that the services of the petitioner was terminated under the provisions of Order 16 (x) of the Standing Orders. The actual provision for termination of service of an employee is enshrined under Order 36 of the Standing Orders. Admittedly, no notice was given to the petitioner.

Order 16(x) and Order 36 of the Standing orders reads as under:

APPLICATION FOR LEAVE:

(x) If a workman/ employee:

(a) remains absent without intimation and sanction of leave, or

(b) remains absent beyond period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless he returns within fifteen days of his absence or the expiry of the leave and explains to the satisfaction of the management his reasons for absence or his inability to return before the expiry of the leave. (In case the employee / workman losses his lien on his appointment, he shall be entitled to be kept on the badli list.). Where however, the period of such absence exceed 8 days the employees/ workman shall be presumed to have left the services of the company of his own accord without notice.

DISCHARGE AND TERMINATION OF SERVICE :

Except as provided specifically in the contract of service or in the Standing Order No. 32., the management may terminate the service of an employee/workman by assigning reasons after giving the following notices or on payment of wages in lieu of notice.

(a) In the case of permanent employee/ workman, one months''s notice.

(b) In the case of temporary employee/ workman, probationers and apprentices 14 days notice subject to the provision of the law for the time being in force, if their services are terminated before the expiry of the specified period of their appointment.

(c) In the case of substitutes and casual employees/ workmen no notice subject to the laws for the time being in force.

Order 16 deals with application for leave and order 36 deals with dircharge and termination of service if both the Orders are read harmoniously it can be said that the notice is provided before terminating the services of an employee if an employee remains absent from the work. It is very clear that the notice has to be given to an employee in order to explain his absence. May be due to unavoidable circumstances, the employee was restrained from attending the services and as such employee cannot be punished with extreme penalty of termination from service without affording him as opportunity of hearing to put forward his case.

The Supreme Court in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat, in para 15 has held as under :-

It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorised leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. Is this in strict compliance with the Certified Standing Order - the answer possibly cannot be in the affirmative. Though however, if the letter dated 25-10-1990 as noticed above is to be taken note of, then and in that event the same thus comes within the ambit of the Certified Standing Order of 10 days'' continued absence- the situation however is slightly different in the present context since the letter of 25th October is an intimation of his name being struck off the rolls of the company. It is an act, subsequent to the order of termination and if the letter of 17th October is an indication for such an order of termination the same does not come within the ambit of the Certified Standing Order. The High Court on this score stated as below.

Even if it is presumed that the petitioner management may have afforded an opportunity to the respondent workman to tender his explanation and as such complied with the principles of natural justice in terms of the decision rendered by the Apex Court in Hindustan Paper Corpn. case yet the question remains, whether the determination of the petitioner management was arbitrary and without application of mind ?

In our considered view, the rejection of the claim of the respondent workman is absolutely arbitrary and without consideration of the material placed on record by the respondent workman (as discussed in the foregoing paragraph). The Labour Court examined in detail the factual position and returned a finding that the respondent workman had not absented himself from service deliberately or intentionally and also that he had not abandoned his service. It was further concluded that his absence was based on account of his illness which could be affirmed from the medical certificates produced by him. In the aforesaid view of the matter, in our considered view, the action of the petitioner management in rejecting the representation of the respondent workman dated 30-1-1991 was clearly arbitrary and as such it is not sustainable in law.

In the facts and circumstances of the case, when admittedly, the petitioner was absent from 11.3.2001 to 12.6.2001 on the ground of medical treatment. The petitioner has submitted medical certificate to that effect in order to prove his case that he was restrained from attending the work on account of medical treatment. And further, in view of the decision of the Supreme Court in the case of Lakshmi Precision Screws Ltd. (supra), this petition deserves to be allowed.

The parties have not addressed on the question of payment of full back wages and applying the principles of "no work, no pay", 50% back wages will be just and proper.

For the reasons stated above this petition is allowed. No order as to costs.