Shah Paper Mills Ltd vs Babban Singh Kedarnath Singh on 11 July, 2018

[Cites 16, Cited by 0]

Gujarat High Court

Shah Paper Mills Ltd vs Babban Singh Kedarnath Singh on 11 July, 2018

Bench: K.M.Thaker

        C/SCA/12101/2016                                ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 12101 of 2016

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                        SHAH PAPER MILLS LTD
                               Versus
                    BABBAN SINGH KEDARNATH SINGH
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Appearance:
NANAVATI ASSOCIATES(1375) for the PETITIONER(s) No. 1
MR YOGEN N PANDYA(5766) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
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 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER

                           Date : 11/07/2018
                            ORAL ORDER

1. Heard learned advocate for petitioner and learned advocate for respondent.

2. The petitioner company has challenged award dated 30.10.2015 passed by the learned Labour Court at Valsad in reference no. 25/99 whereby learned Labour Court held that the petitioner company terminated service of the respondent and that the termination of the petitioner's service from 18.8.1995 is illegal.

2.1 Having reached such conclusion learned Labour Court directed the petitioner company to Page 1 of 27 C/SCA/12101/2016 ORDER reinstate the claimant (present respondent) with 50% backwages and continuity of service.

3. So far as factual backdrop is concerned, it has emerged from the record that present respondent (original claimant before learned Labour Court) raised industrial dispute with allegations that the company illegally terminated his service on 18.8.1995 and that therefore he should be reinstated in service.

3.1 Appropriate government referred the dispute for adjudication to learned Labour Court. The dispute came to be registered as reference no.25/99.

3.2 In his statement of claim it is alleged that he was serving with the company since last 3 years however, without any fault on his part and without any notice the company illegally terminated his service by oral order on 18.8.1995. He also alleged that when he tried to explain the reason as to why water was not drained out and pumps were not operated (viz. Page 2 of 27 C/SCA/12101/2016 ORDER there was no power supply) Mr. B.D.Patel the Manager got agitated with his reply and terminated his service with oral order on 18.8.1995. The claimant alleged that while terminating his service the opponent company did not grant opportunity of hearing and did not follow procedure prescribed by law. With such allegations the claimant demanded reinstatement in service with all benefits.

3.3 The opponent company opposed the reference. In its reply the company claimed that the allegations that the workman worked with the company for 3 years are incorrect. According to the petitioner company the claimant had worked with the company for 91 days and the claimant voluntarily stopped reporting for work from 19.8.1995. The company alleged that before Labour Commissioner the Company had offered to reinstate the claimant but the claimant did not report for duty. The company also claimed that the claimant had secured other and better employment and only Page 3 of 27 C/SCA/12101/2016 ORDER with a view to extracting money the claimant had raised industrial dispute however he was actually not interested in serving with the company. With such submission the company claimed that the reference should be rejected.

3.4 Upon conclusion of the pleadings, the learned Labour Court received evidence from both sides and after examining material available on record, the learned Labour Court reached to above mentioned conclusion and in light of its findings the learned Labour Court allowed the reference with above mentioned direction. Feeling aggrieved by the said directions, the company has taken out present petition.

4. Learned advocate for the petitioner assailed the award and submitted that the learned Labour Court failed to take into account the fact that during conciliation proceedings before Assistant Labour Commissioner the Company had submitted letter declaring it had not terminated service of Page 4 of 27 C/SCA/12101/2016 ORDER the claimant and that the claimant may report for work. Learned advocate for the petitioner relied on the document at Page28/A ( i.e. the letter dated 18.6.2006 addressed by the company to the Assistant Labour Commissioner). He submitted that by the said letter the company clarified that it was the claimant who was voluntarily not reporting for duty from 19.8.1995 and that the company is ready and willing to allow the respondent to resume his duty and to take him back on his original post. However question of payment of wages does not arise because it was claimant who had not reported for duty. In light of the said letter, learned advocate for petitioner submitted that the learned Labour Court committed error in holding that the respondent's service came to be terminated illegally. Learned advocate for the petitioner also placed reliance on Para2.9 of the petition and submitted that the Company has declared that even now the Company is ready to take the respondent back in service. He submitted that the Page 5 of 27 C/SCA/12101/2016 ORDER said statement by the company before Conciliation Officer and in present petition establishes that the respondent stopped reporting for duty and company had not terminated his service and therefore the award is incorrect, unjustified and that therefore the award deserves to be set aside.

5. Learned advocate for petitioner opposed the submission. He submitted that the claimant's service was terminated because the Manager of the Company got agitated by the reply given by the claimant and therefore under oral directions service of the claimant was terminated. He submitted that the Company had never addressed any letter to the workman to report for duty and it was for the first time in the Conciliation Officer the Company submitted a letter dated 18.6.2006 and that when, in view of the instruction by the Conciliation Officer, the workman approached the Company with a request to allow him to resume duty, he was not allowed to Page 6 of 27 C/SCA/12101/2016 ORDER resume duty and the said fact was informed to the Conciliation Officer during the conciliation meeting held on 12.9.1996. Learned advocate for the workman submitted that in light of the said details it comes out that actually the company made such incorrect submissions only with a view to misleading the authority and the Court that the Company is ready and willing to allow the workman to resume duties but actually the Company did not allow the workman to resume duties however such misleading submission is made so as to prolong the proceedings and to avoid responsibility for backwages and other appropriate directions. Learned advocate for the workman submitted that the workman cannot have and does not have any objection to report for duty provided he is allowed to resume duties. With said submission learned advocate for workman submitted that there is no error in the decision and the petition deserves to be rejected.

6. I have considered rival submission and I Page 7 of 27 C/SCA/12101/2016 ORDER have also considered material available on record as well as impugned award.

7. At the outset it is relevant and necessary to mention that while raising industrial dispute the claimant alleged that his service came to be terminated under oral direction on 18.8.1995. 7.1 As against the said claim of the workman, the Company contended that it is the claimant who voluntarily stopped reporting for work from 19.8.1995.

7.2 During conciliation proceedings the company filed letter dated 18.6.2016 wherein it claimed that the claimant had voluntarily stopped reporting for duty from 19.8.1995 and that on 23.4.1996 ( after 8 months) the company had asked the workman to give explanation about his absence and to resume duty but he did not report for duty.

7.3 It is pertinent to note that at any stage Page 8 of 27 C/SCA/12101/2016 ORDER i.e. either before Conciliation Officer or before learned Labour Court, the said alleged letter dated 23.4.1996 was never placed on record. 7.4 Thus, the company failed to establish that such letter (as claimed by it) dated 23.4.1996 was ever written to and served to the claimant.

8. From the minutes of the proceedings before Conciliation proceedings (Page30A) it comes out that during said proceedings the Conciliation Officer had asked the workman to report for work and on 12.9.1996 the representative of the workman categorically informed the Conciliation Officer that workman had reported for duty but he was not allowed to resume duty.

8.1 In view of the said statement by the representative of the workman and in view of the fact that on 12.9.1996 representative of the company was not present, the proceedings were adjourned and ultimately the Conciliation proceedings failed. Therefore the Conciliation Officer submitted failure report on 13.11.1996. Page 9 of 27 C/SCA/12101/2016 ORDER 8.2 It is pertinent to note that before the Court, the Company's witness did not deny the claimant's allegation viz. the company did not allow him to resume duty when he approached the Company on instruction by Conciliation Officer and the Company had never written/ served any letter or notice about alleged absence or alleged abandonment or with instruction to resume duty and offer explanation.

9. It is also relevant to note that in the statement of claim the claimant specifically mentioned the incident which occurred on 18.8.1995 with the Manager Mr. B.D.Patel. 9.1 In his statement of claim the claimant even mentioned the details about the instruction given by Mr. Patel and his own reply to Mr. Patel. The claimant also specifically mentioned in the statement of claim that Mr. Patel was agitated with his reply and Mr. Patel abused him in filthy language and dismissed him from service by oral direction. The claimant submitted that after said Page 10 of 27 C/SCA/12101/2016 ORDER oral direction to terminate, he tried to report for duty but his efforts over a period of time did not yield any result and therefore he raised the industrial dispute.

10. At this stage it is relevant to note that though specific allegations are made against Manager Mr. B.D.Patel, the company very conveniently and for reasons best known to it, did not examine said Mr. Patel. It was not the case of the company before the learned Labour Court and even in present petition it is not the case that at the relevant time i.e. when the proceedings were pending before learned Labour Court and when the Company's evidence was being recorded, Mr. Patel was not in service and that therefore the evidence could not be offered. 10.1 The company, conveniently and for reasons best known to it, kept back evidence of Mr. Patel and did not offer him as witness to protect him from crossexamination.

Page 11 of 27 C/SCA/12101/2016 ORDER 10.2 Under the circumstances the specific allegation by thw workman with regard to the incident which occurred on 18.8.1995, remained uncontroverted.

11. Another relevant aspect which deserves to be mentioned is that from 18.8.1995 to 18.6.2006 (i.e. date when petitioner company submitted letter before Conciliation Officer, the company had never written any letter to the workman asking him to report for duty and/ or calling for the workman's explanation about alleged absence from duty from 19.8.1995. The company never asked the workman to showcause or offer explanation and to why he was not reporting for duty. 11.1 The company also did not inform the workman that he was absent from duty without prior permission and his conduct will be considered unauthorised absence and if he does not report for duty appropriate action in accordance with law will be taken.

11.2 Any intimation of whatsoever nature was not Page 12 of 27 C/SCA/12101/2016 ORDER forwarded by the Company to the workman from 18.8.1995 to 18.6.2006.

11.3 Of course, in its letter dated 18.6.2006 the petitioner company made reference of a letter dated 23.4.1996 however the said letter was never placed on record before Conciliation Officer or before learned Labour Court. Therefore the said aspect i.e. alleged letter of 23.4.1996 is not proved and established by the company. The fact remains that any communication for such long period was never made by the company.

12. One more relevant aspect which also deserves to be taken into account is that though the company made a statement in the letter dated 18.6.2006 that it was ready and willing to allow the workman to report for duty, the Company had, as specifically alleged by the workman not allowed him to resume duty (though the claimant had reported for duty). The company/ its witness has not denied and controverted said statement by workman (except in the written statement). More Page 13 of 27 C/SCA/12101/2016 ORDER particularly the witness maintained convenient silence and he did not deny workman's claim that he was not allowed to resume duty, though he reported for work. Thus, said statement remained uncontroverted. From the reply filed by the Company it comes out that the company has nowhere reiterated the statement made in the letter dated 18.6.2006 and the company did not mention in the reply that it was ready and willing to allow the workman to resume his duty. Even in the evidence of the company's representative, such effort is not made. During the evidence of company's representative, said witness did not mention before learned Labour Court that the Company was ready and willing to allow the workman to resume duties. When the Company's stand was and is that it had not terminated the claimant's service, there was no reason or justification to shyaway from clearly stating before the Labour Court in the reply and in oral evidence that company is ready and willing to allow the workman to resume duty.

Page 14 of 27 C/SCA/12101/2016 ORDER

13. In this backdrop, learned Labour Court considered the evidence by both sides.

14. As mentioned above, the claimant's allegation about incident with Manager Mr. Patel, has remained uncontroverted.

15. On the other hand, the company failed to establish that (a) the workman voluntarily abandoned the service and his service was not terminated on oral direction by Mr. Patel at any point of time from 18.8.1995 to 18.6.1996 and at any point of time after 18.8.1995 until the evidence of contesting parties came to be recorded by learned Labour Court, any offer to reinstate the workman or to allow him to resume duties was ever made by the Company and/ or that he was called to resume work and/ or that though he was called to resume duty the claimant never reported for duty.

16. The aspect related to the claimant's allegation about the incident with the Manager on Page 15 of 27 C/SCA/12101/2016 ORDER 18.8.1995 is discussed by the learned Labour Court in the award, more particularly under Issue No.1. Learned Labour Court has taken note of the fact that personnel Manager of the company ( i.e. a representative/ witness of the company who gave evidence before learned Labour Court) pleaded complete ignorance and said that he had not idea about the said incident. As mentioned above, the said Mr. B.D.Patel was not examined as company's witness.

17. After considering the evidence of the workman and the company's witness learned Labour Court reached to the conclusion that the company failed to establish that it was the workman who stopped reporting for duty but the claimant succeeded in establishing that his service was terminated by oral direction on 18.8.1995 on account of the incident which occurred with the Manager Mr. Patel.

17.1 There is nothing on record to satisfy the Page 16 of 27 C/SCA/12101/2016 ORDER Court that the decision by learned Labour Court is erroneous or incorrect or perverse.

18. Now, at this stage, it is relevant to note that (a) the witness of the company admitted during his crossexamination before the learned Labour Court that the Company had deleted / struckoff claimant's name from its register; and

(b) the witness of the company also expressly admitted that before strikingoff/ deleting the claimant's name from register any notice was not issued, chargesheet was not issued and hearing was not granted to the workman and/ or any amount either towards unpaid wages for the service rendered by him from 1.5.1995 to 18.8.1995 or any other terminal/ retiral dues and / or retrenchment compensation were not paid to the claimant.

19. At this stage, it is not out of place to mention that during his submission learned advocate for the petitioner company conceded to Page 17 of 27 C/SCA/12101/2016 ORDER the fact and admitted that before 18.8.1995 the claimant had rendered service for 3 years. 19.1 Despite the fact that claimant had rendered continuous and regular service for 3 years, the company before strikingoff/ deleting the claimant's name from the register, did not issue any notice, did not grant opportunity of hearing, and/ or did not pay retrenchment compensation and without following any procedure prescribed by law, deleted the claimant's name from the register.

20. As mentioned above on one hand the claimant could establish that his service came to be terminated under oral instruction on account of the incident which occurred on 18.8.1995, whereas on the other hand the company failed to establish that before deleting/ strikingoff the name of the respondent from register it had followed procedure prescribed by law.

20.1 As mentioned above, the company did not consider and did not treat the claimant's alleged Page 18 of 27 C/SCA/12101/2016 ORDER absence from duty after 18.8.1995 as unauthorised absence. Any action on such ground was not taken by the Company.

20.2 Thus, it emerges that the company never treated the alleged absence of the respondent as misconduct and according to its own case claimant's service was not terminated at all, and in any case it was not terminated for / on ground of misconduct viz. unauthorised absence. 20.3 On the other hand the procedure prescribed by law under Section 25F was not followed.

21. In this context, reference can be had to the decision in case of D.K.Yadav v. JMA Industries Ltd. [(1993) 3 SCC 259] wherein the Hon'ble Apex Court observed and held, inter alia, that:

"4. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh, (1990) 3 SCC 682, the Constitution Bench considered the scope of the word 'retrenchment' defined by Section 2(oo) and held in para 71 at page 716 that "analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health. There would be no violational element of the employer. Their express exclusion implies that those would otherwise have been included. In para 77 at page 719 it Page 19 of 27 C/SCA/12101/2016 ORDER was further held that "right of the employer and the contract of employment has been effected by introducing Section 2(oo)". The contention of the management to terminate the service of an employee under the certified Standing Orders and under the contracts of employment was negatived holding that the right of the management has been effected by introduction of Section 2(oo) and Section 25F of the Act. The second view was that the right as such has not been affected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of Section 25F of the Act to tide over the financial difficulty which subserves the social policy. This Court relied on the maxim Stat pro ratione valuntas populi : the will of the people stands in place of a reason. In paragraph 82 at page 722 this Court concluded that the definition in Section 2(oo) of the Act of retrenchment means "the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section". Same view was taken by three benches of three Judges of this Court in State Bank of India v. N. Sundara Mani, (1976) 3 SCR 160 : (AIR 1976 SC 1111); Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherjee, (1978) 1 SCR 591 : (AIR 1978 SC 8) and Hindustan Steel Ltd. v. Presiding Officer, Labour Court, (1977) 1 SCR 586 : (AIR 1977 SC 31) and two benches of two judges in Robert D'Souza v. Executive Engineer Southern Railway, (1982) 1 SCC 645 : (AIR 1982 SC 854) and H. D. Singh v. Reserve Bank of India, (1985) 4 SCC 201: (AIR 1986 SC 132) took the same view. Therefore, we find force in the contention of Sri R. K. Jain, the learned Senior counsel for the appellant that the definition 'retrenchment' in Section 2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. We need not, however, rest our conclusion on this point as in our considered view it could be decided on the other contention raised by Sri Jain that the order is violative of the principles of natural justice. We are impressed with that argument.

Before dealing with it, it is necessary to dispose of interrelated contentions raised by Dr. Anand Prakash.

5. The Contention of Dr. Anand Prakash that since the appeal was deleted from the constitution bench to be dealt with separately, the finding of the constitution bench deprived the respondent of putting forth the contention based on clause (13) of the certified standing order to support impugned action and the respondent is entitled to canvass afresh the correctness of the view of the Constitution Bench is devoid of force. It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support Page 20 of 27 C/SCA/12101/2016 ORDER unless the Court deemed appropriate to refer to a larger bench in the larger public interest to advance the cause of justice. The constitution bench in fact went into the self same question visavis the right of the employer to fall back upon the relevant provision of the certified Standing Orders to terminate the service of the workman/employee. By operation of Section 2(oo) the right of the employer under Clause 13(2)(iv), and the contract of employment has been effected. More over in Ambika Prasad Mishra v. State of U.P., (1980) 3 SCC 719 at 722 23 paras 5 and 6 : (AIR 1980 SC 1762 at Pp. 176465, paras 5 and 6) a Constitution Bench held that every new discovery or argumentative novelty cannot undo or compel reconsideration of binding precedent. It does not lose its authority 'merely' because it was badly argued, inadequately considered and fallaciously reasoned. In that case the ratio of this Court on Article 31A decided by 13 Judges bench in Keshwanand Bharti v. Union of India, 1973 was sought to be reopened but this Court negatived the same.

6. His contention that expiry of eight days' absence from duty brings automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance. The constitution bench specifically held that the right of the employer given under the standing Orders gets effected by statutory operation. In Robert D'Souza's case in para 7, this Court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done. It was further held that striking off the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consecutive days amounts to mis conduct and termination of service on such grounds without complying with minimum principles of natural justice would not be justified. In Shambhunath's case threeJudge bench held that striking off the name of the workman for absence of leave itself amounted to retrenchment. In H. D. Singh v. Reserve Bank of India, this Court held that striking off the name from the rolls amounts to an arbitrary action. In State Bank of India v. Workmen a twoJudge bench of this Court to which one of us, K.Ramaswamy,J. was a member was to consider the effect of discharge on one month's notice or pay in lieu thereof. It was held that it was not a discharge simpliciter or a simple termination of service but one camouflaged for serious misconduct. This Court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law.

7. The principle question is whether the impugned action is violative of principles of natural justice. In A. K. Kriapak v. Union of India a constitution bench of this Court held that the distinction between quasi judicial Page 21 of 27 C/SCA/12101/2016 ORDER and administrative order has gradually become thin. Now it is totally eclipsed and obliterated. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operative in the area not covered by law validly made or expressly excluded as held in Union of India v. N. Singh. It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural justice by necessary implication from specific provisions in the Act like Sections 25F, 25FF, 25FFF etc., the need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or services are completed, the need to dispense with the services may arise. In that situation, on compliance of the provisions of Section 25F resort could be had to retrench the employees in conformity therewith particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies.

8. The cardinal point that has to be born 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 reason able 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.

9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner, the Constitution Bench held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties material deprivations and non pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country.... they include ...... rights capable of being enforced or redressed in a Page 22 of 27 C/SCA/12101/2016 ORDER civil action ........In State of Orissa v. Dr. (Miss) Binapani Dej, this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.

10. In state of West Bengal v. Anwar Ali Sarkar, per majority, a seven Judge bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.

11. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary fanciful or oppressive. There can be no distinction between a quasi judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasijudicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively to prevent miscarriage of justice, it is Page 23 of 27 C/SCA/12101/2016 ORDER difficult to see why it should be applicable only to quasijudicial enquiry and not to administrative enquiry. It must logically apply to both.

15. 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 Order 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 Article 14. When so read the impugned action is violative of the principles of natural justice.

16. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accordingly. The parties would bear their own costs."

22. In light of the said observation, even otherwise the petitioner's action viz. striking off/ deleting the claimant's name from the register cannot be sustained.

22.1 The said action of the company amounts to termination of claimant's service - retrenchment. 22.2 Under the circumstances the findings and conclusion by learned Labour Court cannot be Page 24 of 27 C/SCA/12101/2016 ORDER faulted.

22.3 The learned Labour Court has recorded specific findings which are based on evidence available on record or that of evidence by the company to support its defence.

22.4 There is nothing on record to establish that or to satisfy the Court that the findings recorded by learned Labour Court are incorrect or perverse.

22.5 The petitioner has failed to make out any ground to assail the conclusion and direction by learned Labour Court.

23. Even otherwise, in view of the categorical statement made by the company in Para2.9 of the petition, the petitioner does not have any ground to assail the direction to reinstate the workman. 23.1 At this stage it would be appropriate to take into account the said Para2.9 of the petition:

"2.9 It is to state that the Respondent No.1 has never filed any letter or pursis before any authority claiming that he is willing to rejoin service of the Petitioner Page 25 of 27 C/SCA/12101/2016 ORDER Company. On the contrary, the Petitioner Company is willing to take Respondent no.1 back in services even as on date. The said aspect vindicates stand of the Petitioner Company that Respondent no.1 was never terminated from services at any point of time."

23.2 In view of the said submission, declaration and statement by the Company, even otherwise, the company is not not justified in assailing the direction to reinstate the claimant. 23.3 Besides this, the fact that the company has failed to assail the evidence recorded by learned Labour Court and thereby it has also failed to assail the direction to reinstate the claimant while the termination is found to be illegal, direction to reinstate the claimant cannot be faulted.

23.4 When the company declared that it is ready and willing to reinstate the claimant, now any dispute or the issue with regard to the said direction does not survive.

24. The only question which now survives is consideration with regard to learned Labour Page 26 of 27 C/SCA/12101/2016 ORDER Court's direction to grant 50% backwages and continuity of service.

25. In light of the facts and circumstances of present case coupled with the fact that, the claimant approached the Conciliation machinery in 1999, i.e. almost four years after his service was terminated, the direction to pay 50% backwages from date of termination is not justified and cannot be sustained.

26. Therefore, while confirming the direction to reinstate the claimant, the direction to pay backwages is set aside.

27. With aforesaid observation and direction, the petition is disposed of. The direction granting reinstatement and continuity are not disturbed. However direction granting backwages is set aside.

(K.M.THAKER, J) saj Page 27 of 27

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