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V.S. Aggarwal, J.—M/s. K.G. Khosla Compressors Ltd., hereinafter described as the petitioner, seeks quashing of the award passed by the Labour Court, Faridabad, dated 27.9.1996. By virtue of the impugned award, the learned Labour Court held that respondent No. 2 workman had not abandoned the service. There was no justification for terminating, his services and he was entitled to reinstatement with 50% hack wages.
The relevant facts are that the respondent-workman had joined the petitioner company on 1.12.1977 as a fitter. A labour dispute was raised by the workman alleging that on 7.6.1986 he was implicated in a criminal case. He could not go to the factory to attend his duty. He sent one leave application on 7.6.1986 and another leave application on 11.6.1986 through one co-worker Udaivir Singh. Udaivir Singh is the neighbourer of the respondent-workman. On 12.6.1996 the workman was arrested and was released on bail on 11.8.1986. During this period of his arrest, he had instructed his lawyer Sh. Sanjeev Rao for supplying information of his arrest to the management. His counsel had intimated the management. After he was admitted to bail, he came to the factory on 12.8.1986. After explaining the circumstances which had led to his absence, he requested for permission to join duty but was refused. He served the management with a demand notice seeking reinstatement.
The petitioner management contested the claim. It was asserted that the workman absented w.e.f. 7.6.1986. A telegram was sent to the workman to join duty by 19.6.1986. No intimation was received from the workman. As per Certified Standing Order governing the service conditions of the workman, he lost his lien. He had voluntarily left the service.
The learned Labour Court framed the issues and recorded evidence. On appraisal of the same, it was held that the workman had been arrested and, therefore, there was just ground for his absence from duty. H& had intimated the management about his arrest. Consequently, the services of the workman could not be terminated. With these basic findings, the impugned order was passed.
The learned counsel for the petitioner assailed the award of the Labour Court alleging that, as per Certified Standing Order, once the workman was absent without permission, the management was justified in terminating his services. Strong reliance was placed on Clause 7(E) of the Certified Standing Order.
On the contrary, argument of the learned counsel for the respondent-workman was that there was just ground for absence of the workman who absented having been arrested in a criminal case. Termination of his services under the peculiar facts tantamount to retrenchment.
Clause 7(E) of the Certified Standing Order reads as under :
"7(E) If a workman remains absent without leave or beyond the period of leave originally granted or subsequently extended, he shall be liable to lose his lien on the appointment he holds unless (i) he reports for duty within 10 days of the expiry of the leave and (ii) gives an explanation to the satisfaction of the Factory Manager of his inability to return to work on the expiry of leave granted or extended as the case may be. Till such time, the explanation has been accepted, he will be treated on leave without pay. Such explanation shall be decided within a week of its receipt."
It is this clause which, as referred to above, has been pressed into service because it was urged that in terms of the plain language of Clause 7 (E) of the Certified Standing Order the workman did not report for duty within 10 days of the expiry of leave nor there was any explanation that was forthcoming.
In support of his claim, the learned counsel strongly relied upon the decision of the Supreme Court in the case of National Engineering Industries Ltd., Jaipur v. Hanuman 1967 LLJ 883. In the cited case also there was a Certified Standing Order. It provided that the workman would Jose his job in case he does not join duty within eight days of the expiry of his leave. It was held that there would be automatic termination of the service under the relevant standing order. But, a perusal of the facts reveal that in the cited case the Supreme Court found that the findings of fact arrived at by the Tribunal under the Industrial Disputes Act were perverse. It was found that the findings that the workman remained ill were not correct and were contrary to the record. The doctor who actually had given the certificate had never been examined. Therefore, it is abundantly clear that the cited decision was confined to its peculiar facts.
In fact, the matter in question is concluded by a plethora of other precedents on the subject. The Supreme Court considered this controversy in the case of Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, . Herein, the name of the workman was struck off from the rolls. Section 25-F of the Industrial Disputes Act had not been complied with. It was concluded that it amounted to retrenchment. Similarly, the Supreme Court in the case of L. Robert D''Souza v. The Executive Engineer, Southern Railway and Anr., AIR 1982 SC 854;1982(1) SU 319 (SC), held that if the services of the workman are terminated without anything more, it constituted and amounted to retrenchment. In paragraph 8 of the judgment, Supreme Court held as under ;
"..The definition of expression ''retrenchment'' in Section 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction. Therefore, we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories i.e. (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; (iv) or termination of the service on the ground of continued ill-health. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in Section 2(oo). It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment, as held by this Court in Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, ....."
The leading case on the subject and more close to the facts of the present case would be the decision rendered by the Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd. 1993(3) SCT 537 (P&H). A similarly worded Certified Standing Order existed between the workman and the management. The argument advanced was identical as in the present case. In paragraph 7 of the judgment, the Supreme Court held as, under:
"The cardinal point that has to be borne in mind in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person."
While upholding that in such circumstances the services could not be terminated without enquiry, the Supreme Court held as under :
"In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant''s plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Arts. 14. When so read the impugned action is violative of the principles of natural justice."
This Court in the case of Roop Narain Shukla v. Presiding Officer, Industrial Tribunal, Faridabad, 1997(3) Service Cases Today 535, has also taken the same view. The earlier view taken in the case of D.K. Yadav (supra) was taken note of by the Supreme Court in the case of Uptron India Ltd. v. Shammi Bhan 1998(2) SCT 69:1998(3) SLJ 223 (SC). In paragraph 20 of the judgment, the Supreme Court held as under:
"There is another angle of looking at the problem. Clause 17(g), which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to automatic termination". This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the 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? These are questions which would naturally rise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave."
It was further concluded thereafter that the principles of natural justice have to be complied with or in other words, the management could not merely on the absence of the workman terminate his services.
It is obvious from the aforesaid that merely on the basis of the Certified Standing Order and the absence of the Workman, services as such cannot be terminated. He must be given a reasonable opportunity to put forward his claim and the procedure so adopted should be there. Otherwise, it would amount to retrenchment.
The relevant portion of the Certified Standing Order has already been reproduced above. Annexure P-2 is the copy of the appointment letter that was issued and paragraph 3 of the same is to the following effect :
"Your services conditions would also be governed by the Certified Standing Order as well as other rules and regulations of the company in force from time to time. Your annual increment will be considered only if your work and conduct are found to be satisfactory during the year."
In this process, the Certified Standing Order governed the conditions of service of the workman but the question that came up for consideration was as to if the workman had a just explanation or not? Not only the Labour Court found as of fact that the workman was prevented by just and sufficient ground from attending his duty but the facts on the record also reveal the same thing. The workman was involved in a criminal case. He had subsequently been arrested and remained in custody for almost two months. There was just and sufficient ground for his absence. It transpired in evidence that his counsel had also sent a registered letter to the management as to why the workman cannot attend to his duty. In the peculiar facts, the management, indeed, could not resort to the Certified Standing Order because it is not a case of abandonment. There was just ground which prevented the workman from attending to his duty. Thus, there is no ground to take a different view from that of the Labour Court.
In that event, the learned counsel on behalf of the petitioner prayed that back wages should not be allowed. But in the peculiar facts, the Labour Court has already taken care and passed an appropriate order. There is no ground to interfere in the discretion that has been so exercised giving 50% of the back wages.
For these reasons, the writ petition being without merit must fail and is consequently dismissed.