Punjab-Haryana High Court
Gurvinder Singh Rana vs The Presiding Officer, Labour Court And ... on 3 April, 1998
Equivalent citations: (1998)119PLR600
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. This is a petition filed by Gurvinder Singh Rana (hereinafter described as 'the petitioner') for quashing the award passed by the Presiding Officer, Labour Court, Patiala dated 3.3.1992. By virtue of the impugned order the learned Labour Court had held that petitioner-workman is not entitled to any relief.
2. The facts alleged are that petitioner was appointed as a Clerk on temporary basis by the Punjab School Education Board on 27.12.1971. He had been put on probation for a period of two years and was confirmed w.e.f. 3.1.1971. Vide order passed by respondent No. 2 dated 19.12.1975. In March, 1975, the petitioner had proceeded on leave because of his mother's sickness. It is his case that for reasons beyond his control, he could not join. A letter was received by the petitioner on 19.5.1975, pointing that he must join otherwise his services shall be terminated. He had submitted the reply explaining the circumstances and prayed for extension of leave upto 31.7.1978. The petitioner's services were terminated vide letter dated 22.7.1978, w.e.f. March, 1975. No notice had been issued and no retrenchment compensation was given.
3. Aggrieved by the order of termination, the petitioner preferred an appeal to the Chairman of the respondent-Board. He even subsequently requested vide reminder on 30.9.1978 for decision of the appeal. When no decision was taken, he had raised a demand; the conciliation proceedings failed and the appropriate Government made a reference Under Section 10 of the Industrial Disputes Act. The learned Labour Court held that reference was highly belated and no relief was granted to the petitioner.
4. The petitioner's case is that the order passed by the learned Labour Court is without jurisdiction because no enquiry was conducted and no show cause notice had been issued to the petitioner. He was a confirmed employee and his services could not be terminated. He further asserted that appeal was pending which was not decided for years and, therefore, there was delay in getting the reference made into the Labour Court.
5. In the written statement filed, the respondent No. 2 (Punjab School Education Board) had contested the petition. The respondent pointed that in the year 1975 the petitioner proceeded on casual leave and remained absent on one pretext or the other. He was treated on half pay leave without pay leave upto 13.2.1970. He never informed respondent No. 3 the reasons for remaining absent. Notices were issued to him to join the duty but he did not join his duties. When he failed to report for duty, his services were terminated. It was pointed that petitioner has abandoned his services. As regards the appeal filed by the petitioner, the defence taken was that no appeal has been filed. Respondent No. 2 supported the award of the Labour court.
6. When the present petition was listed for hearing, none appeared on behalf of respondent No. 2. Therefore, this Court did not have the advantage of hearing the arguments of learned counsel for respondent No. 2.
7. The first and foremost question that comes up for consideration is as to whether any appeal had been filed by the petitioner with the Chairman of the respondent-Board? Annexure P-6 is the copy of the appeal addressed to the Chairman, Punjab School Education Board dated 15.9.1978. In the claim petition before the Labour Court, Patiala, the petitioner had assorted that he had filed an appeal to the Chairman, Punjab School Education Board. The reply had been filed by respondent No. 2 in which it was denied that any such appeal had been filed. The averments were described to be false. However, the labour Court in the impugned award recorded that appeal had been filed on 15.9.1978. But the demand notice was delayed. In other words, the findings of the Labour court were that appeal had been filed. In the present writ petition, in answer to paragraphs 10 and 11, respondent No. 2 pleads "it appears that alleged appeal was never made". The said reply is vague and otherwise also there is a positive finding that appeal had been filed with the Chairman of the respondent-Board. Consequently, it must be held that appeal as such had been filed.
8. As regards the delay in making of the reference, the explanation forthcoming, is that because the appeal was pending, therefore, the petitioner could not make the reference on an earlier occasion. Reliance on behalf of the petitioner is being placed on the decisions of this Court in the case of The Patiala Central Co-operative Bank Ltd. v. The Presiding Officer, Labour Court, and Anr., 1990(5) Services Law Reporter 509; The Management of Haryana Urban Development Authority v. Miss. Neelam Kumari and Anr., (1993-2)104 Punjab Law Reporter 552; Prem Singh and Ors. v. Labour Commissioner, Punjab and Ors., (1994-1)106 Punjab Law Reporter 354; Mani Ram v. The Presiding Officer, Labour Court, Ambala, (1996-2)113 Punjab Law Reporter 39. It was held that mere delay in raising an industrial] dispute will not disentitle a workman from raking up the controversy though the relief can be couched differently. Of course, in a case of inordinate delay, the relief could be refused but the facts of the present case are little different. The petitioner had preferred the appeal. The Punjab School Education Board Employees (Punishment and Appeal) Regulations, 1978. Regulation 10 reads :-
"20(1) An appeal pending at the commencement of these regulations against an order made before such commencement shall be considered and orders thereon shall be made in accordance with these regulations, as if such orders were made and the appeal was preferred under these regulations;
(2) As from the commencement of these regulations any appeal or application for review against any order made before such commencement shall be preferred or made under these regulations; as if such orders were made under these regulations;
Provided that nothing in these regulations shall be construed as reducing any period of limitation for any appeal or review provided by any regulation in force before the commencement of these regulations".
Perusal of it shows that pending appeals were saved and had to be considered in accordance with the said regulations. Consequently, the petitioner could wait and if he waited for long, in the peculiar facts of the present case, he could not be blamed. On the ground of delay thus his claim could not be outright rejected.
9. As regard the question as to whether the order passed by respondent No. 2 was justified or not, there is nothing to indicate that before passing of the order, any show cause notice was issued; opportunity of being heard was afforded; any retrenchment compensation had been paid and even no enquiry was held. The Supreme Court in the case of L. Robert D'Souza v. The Executive Engineer, Southern Railway, 1982(1) Services Law Reporter 864, considered the said question and held:-
"On the admission of the Railway Administration, service was terminated on account of absence during the period appellant was on fast. Absence, without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying the minimum principle of natural justice. Further, rule 2302 clearly prescribes the mode, manner and methodology terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out, the termination is void and invalid. Accordingly, the same conclusion would be reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative".
In the case of D.K. Yadav v. J.M.A. Industries Ltd., 6 J.T. 1993(3) S.C. 617, when the opportunity of hearing was not given, the impugned order as such was quashed. Lastly reference with advantage may be made to the Division Bench decision of this Court in the case of Saraswati Industrial Syndicate Limited v. Shri Jai Bhagwan Jain and Anr., 1994(3) Services Law Reporter 392. This Court held:-
"Admittedly, neither any charge-sheet was served on the workman nor any enquiry was made by the employer before dispensing with the service by not allowing him to mark his attendance or to allot him work. When the employer had treated the workman to have absented from duty, it was simply not open to it to have brought an end to the relationship of master and servant without holding an enquiry in the matter and without recording a finding of guilty qua the workman. To our mind the action of the employer was clearly contrary to the principles of natural justice. We find support from this conclusion from the decision of the Supreme Court in L. Robert D'Souza v. Executive Engineer, Southern Railway, A.I.R. 1982(1) Supreme Court page 853. In that case, their Lordships of the Supreme Court had examined an almost identical case involving termination of service of the workman on the ground of absence without leave. The Supreme Court declared that absence without leave constitutes misconduct and it is not open to the employer to terminate the services without notice and enquiry or at any rate without complying with the minimum principles of natural justice".
As already referred to above in the present case in hand, no enquiry was held; no show cause notice had been issued or even opportunity of being heard was not afforded. The principle of natural justice was totally given a go by. Therefore, the order terminating the services of the petitioner cannot be justified.
10. For these reasons, the writ petition is accepted and the impugned award is quashed. It is directed that petitioner be reinstated in service. But keeping in view the inordinate delay in making of the reference and conduct of the petitioner i.e. the manner in which he remained absent, it is directed that he shall not be entitled to any back wages.