Sindri Cement Factory Workers'' Union vs Labour Court and Others

R.P. Sinha, J.—In this writ application the petitioner has prayed for quashing Annexure "3", the award dated 29th June, 1971 of the Presiding Officer, Labour Court, Ranchi, and for reinstatement of the workman R.K. Sharma in service with all his past wages, other benefits and emoluments.

The petitioner in this case is the Sindri Cement Factory Workers Union, District Dhanbad which claims to look after the welfare of the majority of the workmen at Sindri Cement Works. The workman, R.K. Sharma (hereinafter referred to as the workman) has been a member of the union a ad has been working at the Sindri Cemert Works for the last several years as a fitter. He was granted leave from 23rd September, 1967 to 10th October, 1967. He went home where he fell ill and so he sent an application for extension of his leave along with a medical certificate and his leave was "extended upto 22nd November, 1967. According to him, his illness continued and her sent a post-card praying for further extension of his leave on 21rd November, 1967 and also a telegram on 39th November, 1967. But he did rot receive any information" "from the management. On 2nd December, 1967 he received an order (Annexure]) under the signature of the Manager of the factory informing him that his lien to the service had automatically terminated'' on expiry of his leave on 2nd November, 1967 On receipt of the aforesaid order he sent a reply to the management on 8th December, 1967 regarding his prayer for-extension of leave on account of continued illness. On 26th December, 1967 he came to Sindri to resume his duty but was not allowed to join in view of the order of the management dated 2nd December, 1967 (vide Annexure '') This led to an industrial dispute which was referred for adjudication to respondent No 1, the Presiding Officer. Labour Court, Chhotanagpur Division, Rancbi, by notification dated 2nd April, 1968 (Annexure 2;. By the award dated 19th June, 1971 respondent No. I held that the termination of service of the workman aforesaid was justified and that he was not entitled to any relief. As against the award aforesaid, the Sindri Cement Factory Workers'' Union has filed this writ application.

It has been contended by learned Counsel appearing on bewails of the union that the workman has been victimised for his trade union activities particularly for having represented the case of the members of the union in conciliation proceeding. The award of the Labour Court has been challenged mainly on the ground that it has wrongly held that the termination of service of the workman was justified when there has been a flagrant violation of the standing order as well as the principles of natural justice in this case. It has also been urged that respondent No. 1, the Presiding Officer, Labour Court, Ranchi, as constituted by the notification dated 13th January, 1971, ceased to have jurisdiction over the said Court pursuant to the notification dated Uth April, 1971. It has been stated that by the notification dated 12th April, 1971 the Government superseded the notification dated 13th January. 1967 as a result of which Dhanbad ceased to be under the jurisdiction of Chhotanagpur Division, Ranchi. Hence, according to him, the award given by respondent No. 1on 20th June, 1971, was a nullity. It was also urged that the correct provision of the standing orders of the management was not applied in the case of the workman in this case by the management. it as, according to the petitioner, the workman should have been dealt with under Standing Order No. 15(2) read with Standing Order No. 16 and not under standing Order No. 9(3) of the Certified Standing Orders.

From Annexure "2", the notification dated 22nd April, 1968, it apppears that under Clause (c) of Sub-section (1) of Section 10 of the Industrial Disputes Act. 947, the dispute between the workman of the union and the management of the Associated Cement Company Limited. Sindri Cement Works, Sirdri, was referred for adjudication to the Labour Court, Ranchi, constituted by notification dated 30th anuary, 1967. Respondent No 1, by notification dated 9th January, 1470 (Annexure 1) was appointed as me Presiding Officer of the Labour Court at Ranchi, con. stituted by notification dated 30th January, 1967. By another Notification dated 12th April, 1971, Government notification dated 30th January, 1967 was superseded and Labrmr Courts at the headquarters of Patna, Muzaffdrpur, Ranchi and Bhagalpur were constituted specifying the local limits of their jurisdiction for adjudication of industrial disputes. In the case of East Indian Pnurmactuncal Works Limited and Ors. v. G.S. Verma and an there (1973) LIC. 1501 a similar question had arisen and it was held:

Having given my careful consideration to the question I am of the opinion that the appropriate Government has no power or jurisdiction to abolish a Labour Court duly constituted u/s 7 of the Act so far as the pending references and pending cases are concerned. The cancellation of a notification by which a Labour Court has been constituted by a subsequent notification and constitution of Afroh Labour Court by that notification would not result in the abolition of the Labour Court constituted under the previous not inflation so far as the pending references and other pending cases are concerned. The new notification will operate from the date of that notification and the reference made and case filed on or from the date of the new notification will only be taken cognizance of by the new Labour Court or Courts, as the case may be, constituted under the fresh notification.

So, in view of the decision referred to above, the impunged award cannot be held to be a nullity.

It was urged on behalf of the petitioner that the workman should have been given an opportunity to explain the circumstances before his services were terminated by the impunged order of the management (Annexure""'') The Presiding Officer of the Labour Court has rot accepted the plea of the workman that he had sent a post card praying for extension of lenve after his leave had expired nor has he believed that the workman had sent any telegram as claimed by him. So, in absences of any evidence of the fact that the workman had applied for further extension of leave his case has got to be treated on the footing that his leave expired on 22nd November, 1967 and, according to Standing Order No. 9(3) he should have returned within eight days of the expiry of the leave and should have given satisfactory explanation of his inability to return on the expiry of the leave, or he had to lose his lien on the appointment. Standing Order No. 9(3) runs as follows:

9(3)-If a worker remains absent beyond the period of granted leave he shell lose his lien on his appointment unless (i) he returns within eight days of the expiry of the leave and (ii) gives satisfactory explanation to the authority who granted his leave of his inability to return on the expiry of the leave.

In this case, interview of the finding arrived at by respondent No. 1, that the workman had not sent any post-card or a telegram and since admittedly he had not returned within eight days of the expiry of his leave, the consequences of his acts and omissions had to follow. In National Engineering Industries Ltd. Vs. Hanuman, , the Supreme Court has observed thus:

...when the Standing Order provides that a workman will lose his lien on his appointment in case he does not join his duty within eight days of the expiry of his leave, it obviously means that his services are automatically terminated on the happening of the contingency. We do not understand how a workman who has lost his lien on his appointment can continue in service thereafter. Where, therefore, a standing order provides that a workman would lose his lien on his appointment, if he does not join his duty within certain time after his leave expires, it can only mean that his service stands automatically terminated when the contingency happens.

Relying on the aforesaid decision of the Supreme Court, this Court in Management of Shiva Flour Mills Vs. The Workmen and Another, has held:

...the termination of lien of the employee on his appointment is automatic on the expiry of his leave and the period of eight days within which under clause, of the Standing Orders he is required to return and explain to the satisfaction of the management his inability to return before the expiry of the leave.

This Court in the case of employers in relation to Digwadih Colliery of Tata Iron & Steel Co. v. Presiding Officer, Central Government Additional Irdustrial Tribunal (C.W.J.C. No. 107 of 1968 decided on 30th April, 1969, had followed the decision of the Supreme Court in the case of National Engineering Industries Limited (supra).

On behalf of the petitioner, reliance was placed on two decisions of the Bombay High Court�(i) in Rambhuwal Thakar Prasad Vs. Phoenix Mills, and (ii) in Smt. Kashibal Sachidanand v. Hindustan Pencils P. Ltd. (1975) LIC 1558. In the case of Rambhuwal Thakur Prasad (supra) the petitioner was employed as a weaver by the respondent-Textile Mills. He was granted leave for thirty days from 16th August, 1967 to 15th Sept. 1967 and he proceeded on leave to his native place. Subsequently he by his letter dated 14th September, 1967, applied for extension of leave for about 20 days and sent a medical certificate to the effect that he was ill. That application was received by the respondent-Mills on 18th September, 1967. In that case it was apparent that the employee had made an application for extension of leave on 14th September, 1967, I.e., prior to the day on which the leave originally granted to him was to expire and that was accompanied by a medical certificate. In the present case, the workman, on the finding of the Labour Court, had not made any application for extension of leave before the extended leave had expired. So the case of Rambhuwal Thakur Prasad is clearly distinguishable from the present one.

In the case of Smt. Kashibai Sachidanand (supra) the petitioner was employed as an operator with the respondent and she had gone on leave on 10th August, 1971 to 16th August, 1971 as she was pregnant. On 19th August. 1971 she gave birth to twins, one of which was born dead and the other soon after ; and she had a prolonged illness. Her services were terminated on 2nd October, 1971 on the ground that she had over-stayed although she had pleaded illness in her explanation to the show cause notice. In her case it appears, the condition of service was governed by the provisions of Model Standing Orders. The relevant clause was Sub-clause (4) of Clause 13 of the Model Standing Orders which was to the following effect:

A workman remaining absent beyond the period of leave originally granted or subsequently ex. tended, shall be liable to lose his lien on the appointment unless he returns within eight days of the expiry of the (auctioned leave and explains to the satisfaction of the authority granting leave his in. ability to resume his duty immediately on the expiry of his leave.

The language of the relevant order quoted above is quite distinct and different from the standing order with which we are conceraed in the instant case In Standing Order No. 9(3) with which we are concerned, the language used is " if a worker remains absent beyond the period of granted leave, he shall lose his lien on his appointment..." whereas Sub-clause (4) of Clause 13 of the Model Standing Orders (ibid) contemplates that " a workman remaining absent beyond the period of leave originally granted or subsequently extended, shall be liable to lose his lien on his appointment.... The expression " shall be liable to lose his lien " does not carry the same meaning as the expression " shall lose his liea ". So, in my opinion, this case is also distinguishable from the present case

It was also urged on behalf of the petitioner that Standing Order No. 15(28) read with Standing Order No. 16 of the management was applicable to the case of the workman and not Standing Order No. 9(3). I, however, find that Standing Order No. 9 deals with "Leave Procedure" and Sub-clause (3) specifically deals with such cases of workmen who remain absent beyond the period of leave granted and do not return within eight days of the expiry of the leave and give satisfactory explanation for inability to return in time whereas order No- 15 gives the description of acts and ommissions which come under the heading of "misconduct". Item No. 28 of Standing Order No. 15 deals with "overstaying the sanctioned leave without sufficient ground. or proper or satisfactory explanation" and Order No. 16 provides penalties including dismissal without notice, if found guilty of misconduct, defined in Standing Order No. 15, after enquiry. In my opinion, there-fore the proper Standing Order applicable in the instant case was Standing Order No. 9(3) and not Standing Order No. 15(28) read with Standing Order No. 16. Besides, that the Supreme Court, in the case of National Ensineering Industries. Limited, has clearly held in somewhat similar situation that in case of alternative provision, the employer was free to resort to and one of the provisions unless it is shown that resort to one particular provision was due to mala fide. The petitioner has not been able to prove mala fide against the respondents and, in any case, it cannot be said that Standing Order No v(3) was not applicable on the facts and in the circumstances of the present

For the reasons stated above, I do not find any substance in any of the points urged on behalf of the petitioner. The application is, accordingly, dismissed. There will, however, be no order as to costs.

S. Sarwar Ali, J.

I agree.