Patna High Court
Pure Kustore Colliery vs Khan Mazdoor Congress (By General ... on 2 August, 1968
Equivalent citations: (1969)ILLJ133PAT
JUDGMENT
1. This application has been filed under Articles 226 and 227 of the Constitution of India by the employers in relation to the Pure Kustore Colliery of Pure Kustore Colliery Company, Ltd., praying that the award given by the additional industrial tribunal (Central), Dhanbad, on 26 October 1867 in Reference No. 74 of 1967 be quashed by issue of an appropriate writ, rule or order. By the award in question the presiding officer of the tribunal has held that the action of the management of the petitioner-company in terminating the lien of appointment of opposite party 2 of this case named Dudhu Bhar, miner of pit No. 4, and placing his name on the badli list was not justified. The tribunal has directed that the workman be reinstated to his permanent appointment with effect from 13 May and he paid his wages and dues, if any.
2. The circumstances under which this award came into existence are mentioned in his application, which may be summarized thus. The workman, Dudhu Bhar, went on sanctioned leave with effect from 5 to 23 April 1965. He had sent a medical certificate dated 23 April 1965 to his employers, which was received by them on 27 April 1965. By a letter issued on the same day, the manager of the company had asked Dudhu Bhar to join his duties on or before 3 May and the employers issued a letter to Mm on 13 May 1965 stating that he had lost his lien on his appointment and that his name had been put in the badli list, according to the provisions of standing order 11 of the certified standing orders of the company, governing the parties. Dudhu Bhav came to join his duties on 17 May 1965 and consequently he was asked to work as a badli worker. It is then stated that Sri Raj-ballabh Prasad, claiming himself to be the branch secretary of Khan Mazdoor Congress, Jharia, filed a complaint before the Regional Labour Commissioner (Central), Dhanbad, with respect to Dudhu Bhar case. Thereafter, a conciliation proceeding was resorted to by the conciliation officer (Central), Dhanbad, No. 1, but no settlement could be arrived at. Thereafter, the Government of India referred the dispute to the industrial tribunal, Dhanbad, under Section 10(4) of the Industrial Disputes Act. In due course, the employers and the workman filed their statements in writing before the industrial tribunal and ultimately, the award in question was given on 25 October 1965.
3. The reference to the industrial tribunal was in the following terms:
(1) Whether the action of the management of Pure Kustore Colliery of Pure Kustore Colliery Company, Ltd., P.O. Kusunda (Dhanbab), in terminating with effect from 13 May 1965 the lien on the appointment of Sri Dudhu Bhar, miner of pit No. 4, and placing his name in the badli list, is not an act of victimization ?
(2) If so, to what relief is the workman entitled ?
What the case of the workman was before the industrial tribunal may now be stated. His case was that as he was unable to join his duties after the expiry of his original leave, due to sickness, he had applied for extension of his leave from 24 April to 14 May 1S85. It v/as alleged that actuated by a motive of victimization, the management had arbitrarily refused an extension of the leave. It was alleged that it was a normal state of affairs that leave granted to the workmen of the colliery used to be extended, but the leave granted to this workman had not been extended as he was a member of the " Congress" and, therefore, the management had acted in a mala fide manner. It was alleged that the management of the company was guilty of discriminating between the employees according to whether they were in the good books of the company or not. The action taken by the employers was said to be arbitrary and vindictive and an act of victimization and discrimination for trade union activities of this particular workman. On these grounds Dudhu Bhar contended that he was entitled to reinstatement, continuity of service and incidental benefits. The attitude taken by the employers was that when the workman had not joined within eight days of 3 May 1965 and had not offered a satisfactory explanation of his inability to return, he had automatically lost his lien on his appointment and his name had been rightly put on the badli list. That is to say, the employers relied upon standing order 11 which is quoted below:
Any direct employee of the company other than a miner or leader who desires to obtain leave of absence shall apply in writing to the head of the department or the manager of the colliery. Employees who due to illiteracy do not apply in writing must apply verbally. If the employee remains absent beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless
(i) he returns within eight days of the expiry of the leave, and
(ii) gives an explanation to the satisfaction of the manager of his inability to return before the expiry of the leave.
In case the employee loses his lien on his appointment he shall be entitled to be kept on the 'badli list'.
4. Upon the main question agitated by the workman before the industrial tribunal, it3 finding is that the workman had not led any satisfactory evidence to. show that the action taken by his employers was discriminatory. According to the presiding officer, it cannot be said that the order passed by the employers on 13 May 1965 (Ex. M. 3) against this particular workman had been passed because he was a member of Pure Kustore Colliery branch of Khan Congress. But, the presiding officer has given relief to the workman on the ground, that it was not open to the management to terminate the lien of the absentee-employee on his permanent appointment and place him on the badli list without giving him an opportunity to explain and produce evidence in support of the explanation as to why he was unable to join his work in time. The presiding officer has held that no such opportunity having been given to Dudhu Bhar in the present case, the order passed on 13 May 1965 cannot be allowed to stand.
5. Sri Ranen Roy appearing for the petitioner-employers has contended that on the very finding given by the presiding officer to the effect that the employee had not been able to prove his case of discrimination, the reference ought to have been answered in favour of the management and that the industrial tribunal has misinterpreted the effect of standing order 11 by stating that the management cannot terminate the employee's lien without giving him an opportunity to explain why he was absent after the leave had expired. Sri Roy has relied upon the decision of their lordships of the Supreme Court in the case of National Engineering Industries, Ltd. Jaipur v. Hanuman 1967-II L.L.J. 883 for his submission. Sri T.K Das appearing for the workman has, on the other hand, contended that the industrial tribunal has rightly held that the employers were bound to give an opportunity to Dudhu Bhar to explain the circumstances under which he was unable to join in time even if he had come more than eight days after 3 May 1965. It is urged that the clauses at the end of the standing order 11 are disjunctive and that the employee could have joined his duties within eight days of the expiry of the leave and if he did not, then it was open to him to satisfy the employers even thereafter, as to why he was unable to return in time. Sri Das has referred to the case of Buckingham and Carnatio Company, Ltd. v. Venkatayya and Anr. 1963-II L.L.J. 638 and the case of Jai Shanker v. State of Rajasthan 1966-II L.L.J. 140 and has argued that these decisions of the Supreme Court assist him in his contentions. Having heard learned counsel for the parties, we are of the opinion that the contentions of Sri Roy ought to be accepted. After the industrial tribunal had come to the conclusion that the workman had failed to satisfy it that the action taken by the employers was discriminatory, the substantial point raised by the employee-workman came to an end. How it has to be found whether the employer was justified in passing its order on that 13 May 1965 in view of standing order 11, quoted above. On this point, the principles laid down by their lordships of the Supreme Court in the case of National Engineering Industries, Ltd., Jaipur 1967-II L.L.J. 883 (vide supra), is clear and categorical. On the terms of standing order 11 when the workman had failed to return within eight days of the expiry of the leave, even assuming that the leave had been extended in this case, and when he had failed to give his explanation within time, the lien on his appointment automatically came to an end. Their lordships of the Supreme Court mentioned that the correct view of law had been laid down in the case of Chandri Bai Uma v. Elephant Oil Mills, Ltd., Bombay. 1951-I L.L.J. 370. In that case the standing order had provided that if an operative remained absent beyond the period of leave originally granted or subsequently extended, he should lose his appointment unless:
(1) he returned within eight days of the expiry of the leave, and (2) gave explanation to the satisfaction of the authority granting the leave of his inability to return before the expiry of leave.
The operative had overstayed her leave and had offered herself for work fifteen days after the expiry of the leave. The tribunal in that case held that under the standing order the operative's services had become terminated before she presented herself for work, Their lordships of the Supreme Court in the case of National Engineering Industries 1967-II L.L.J. 883 (vide supra) approved this view of law, stating that the Labour Appellate Tribunal had held in Chandri Bai case 1951-I L.L.J. 370 (vide supra) that under the standing orders the services had come to automatic termination. The. only difference in the words employed is that in the instant case the question is of a workman losing his lien on his appointment. But there is no difference in principles as has been clarified by the Supreme Court in the case of National Engineering Industries, Ltd., Jaipur 1967-II L.L.J. 883 (vide supra). It is difficult to accept the contention of Sri T.K. Das that the standing order in question visualizes two aspects, one of which is where a workman returned within eight days of the expiry of the leave, and the other, where he returns after eight days and offers an explanation for his inability to return in time. As standing order 11 stands, it is clear that the employee must lose his lien on his appointment unless he returns within eight days of the expiry of the leave, and having returned within that time, gives an explanation to the satisfaction of the manager of his inability to return in time. If the contention of Sri T.K. Das is accepted that the two requirements under standing order 11 are disjunctive and it is held that a workman can return within eight days of the expiry of the leave without having to do anything else, then in practice leave will be automatically extended by eight days, and it is difficult to conceive that the standing order had this end in view. The first decision relied upon by Sri Das, namely, the case of Buckingham and Carnatic Company, Ltd. 1963-II L.L.J. 638 (vide supra) does not lay down any principle which can be attracted in favour of the workman in this case. As a matter of fact, this decision has been considered by the Supreme Court in the case of National Engineering Industries, Ltd., Jaipur 1967-II L.L.J. 883 (vide supra) itself. The observations in this judgment really go against the contention raised by Sri Das. Their lordships have said in 1963-II L.L.J. 638 at 642.
... that although under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn . . . But, where the parties agree upon the terms and conditions of service and they are included in certified standing orders, the doctrine of common law or considerations of equity would not be relevant ....
According to their lordships it is then a matter of construing the relevant terms itself. On the relevant terms incorporated in standing order 11 it is clear that a workman must lose his lien on his appointment unless he returns within eight days of the leave and also gives a satisfactory explanation as to his inability to return in time. In the instant case, when Dudhu Bhar had not returned within eight days from 3 May 1965 his lien on his appointment had come to an end automatically. We do not think that the other decision of the Supreme Court relied upon by Sri T.K. Das assists him in his contention. That was a case where constitutional protection under Article 311 of the Constitution was in question. The facts of Jai Shanker case 1966-II L.L.J. 140 (vide supra) and the instant case are not in pari materia and the Supreme Court stated in that case that the question was whether a Government servant was entitled to an opportunity to show cause against the proposed punishment, as required by Clause (2) of Article 311. It is manifest that the question agitated there was whether the Government servant had been inflicted with punishment or not. In p. 143 of the judgment it is stated that it was admitted on behalf of the State Government that the discharge from service of an incumbent by way of punishment amounts to removal from service. In the instant case, we are not concerned with removal from service by way of punishment, although Sri T.K. Das had made some reference to standing orders 29 and 30. As indicated above, no such contention had been raised by Dudhu Bhar before the industrial tribunal, nor is there any reference to standing orders 29 and 30 in the award. Under the circumstances, Jai Shanker case 1966-II L.L.J. 140 (vide supra) is quite distinguishable. In our opinion, the presiding officer had misdirected himself in going into the question of the management terminating the lien of the absentee-employee and there was justification for entering into the question of giving any opportunity to the employee to explain his absence without leave. The award is vitiated by errors apparent on the face of the record and the petitioner is entitled to a writ of certiorari quashing the award. We therefore quash the award (annexure C to the application) granting relief to the workman, and direct that writ of certiorari be issued to that effect. In the circumstances of the case we do not pass any order for cost.