Punjab-Haryana High Court
Roop Narain Shukla vs Presiding Officer, Industrial ... on 30 May, 1997
Equivalent citations: (1998)ILLJ186P&H, (1997)116PLR767
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT S.C. Malte, J.
1. The petitioner was employed with respondent No. 2. At the relevant time, he was performing a job of inspection and testing of hydraulic pump. He was drawing wages at the rate of Rs. 10.69 per day. The employment of the petitioner came to be terminated by notice dated September 15, 1976 on the ground that he had absented from duty with effect from September 3, 1976 to September 15, 1976 without any intimation to office. The termination of employment was on the ground that the petitioner has thus left his employment of his own accord and his name was struck off from the rolls, as per Clause 27 (1) of the Certified Standing Order of the factory. By the same notice, the petitioner was advised to collect all the legal dues from the accounts department of the factory on any working day. The petitioner made a grievance regarding his termination. The petitioner raised an industrial dispute, which eventually came to be reffered for adjudication to the Industrial Tribunal, Faridabad.
2. Before the Industrial Tribunal, the petitioner contended that on August 1, 1976 while he was on duty the Plant Manager abused him on the ground out of six pumps inspected by the petitioner, four were rejected and only two were passed and thus he has shown total inefficiency in his performance. Thereafter, from August 3, 1976, the petitioner was made to sit at the gate of the factory, petitioner further claims that from August 6, 1976 to August 31, 1976 he obtained leave. On August 14, 1976 when he arrived at the factory he was not allowed to enter the gate of the factory. The petitioner claims that on September 14, 1976 he had made a representation to the Manager (Personnel) of the factory to allow him to work, but that effort went in vain. He claims that on Septemeber 16, 1976 he had obtained a gate pass to leave the factory early as he was not keeping good health . According to him he was willing to attend the work but was thus prevented. Thus, he claims that he has not absented himself from duty. The further contention was that the termination of the employment of the petitioner amounted to retrenchment and, therefore, it was necessary to comply with the provisions of Section 25-F of the Industrial Disputes Act. Since that compliance was not made, the termination of employment was illegal.
3. The Management (respondent No. 2) contended that from September 3, 1976 to September 15, 1976 the petitioner absented from duty without obtaining proper leave and thus exposed himself to the consequences as per the Certified Standing Order of the factory, which enabled the management to terminate his employment on the ground of absence for a span of period mentioned in the Standing Order.
4. Regarding the compliance of Section 25-F of the Industrial Disputes Act, it was submitted that since the termination of employment was in terms of the Standing Orders the provisions of Section 25-F were not attracted. Further, it was submitted that the petitioner was offered the dues as per notice of termination of employment.
5. Before the Industrial Court, elaborate evidence was led in support of rival contentions On appreciation of the evidence, the Industrial Court arrived at the specific finding that the petitioner was absent from duty from September 3, 1976 to September 15, 1976, and his employment was rightly terminated in terms of Standing Orders. He further observed that since the termination was as a result of absence of the petitioner, and as per Standing Orders, he was not entitled to any relief. Against that order, dated September 13, 1976, the present writ petition was filed.
6. In this Court it was submitted that since the name of the petitioner was struck off it was a case of retrenchment and since it was not done by following the provisions of the Industrial Disputes Act, it was void ab initio, and deserves to be set aside, and the petitioner should be reinstated in service with full wages, in response to that, on behalf of respondent No. 2 it was submitted that the petitioner's employment was terminated as per Standing Orders, and it would amount to termination as per the services contract, and, therefore, compliance of Section 25F was not necessary. Alternatively, it was submitted that while serving notice of termination the management has informed the petitioner to collect all his dues from the accounts; department on any working day. Since, he did not collect it, it had remained to be paid. It was further contended that the petitioner was gainfully employed since the time of termination of his service, and as per an admission he was getting between seven to ten Rupees per day, which was just equivalent amount of Rs. 10.69 per day.
7. Termination of employment on the ground of absence from duty for a specific period, as per the Certified Standing Orders in this case, would be retrenchment in terms of Section 2(oo) of the Industrial Disputes Act. The law in that respect is now well settled in view of catena of decisions . The case of Delhi Cloth and General Mills Co. Ltd. v. Shambu Nath Mukherji and Ors., (1978-I-LLJ-1) (SC) laid down,that striking off name of a workman from the rolls by the management is a termination of service, and is covered under the term "retrenchment" within the meaning of Section 2(oo) of the Industrial Disputes Act. In that case, employment of the workman had been terminated on the ground that he was absent from duty for eight days, and thus his employment was terminated in terms of the Standing Orders. On facts, their Lordships were of the view that the period of eight days of absence as required under the Standing Orders was not complete because there was intervening holiday. That apart, their Lordships further observed that even in the absence of any expression of opinion as to the completion of eight days, the striking of the name of the worker from the rolls on the ground of absence for a specific period, provided under StandingOrders, amounts to retrenchment. In another case of D.K. Yadav v. J.M.A. Industries Ltd., (1993-II-LLJ-696), the Supreme Court observed that opportunity should have been offered to the employee before his employment could be terminated in terms of Standing Orders which entailed the termination of employment on the ground of continued absence for a specific period. It was further observed that a termination in such cases the without affording opportunity, is contrary to the principles of natural justice, and offends Article 14 of the Constitution of India. In that case Supreme Court re-instated the service with 50% back wages by observing that the workman was to be blamed for the impugned action.
8. In view of the decisions referred above, it is now quite well settled that even termination of employment as per the Standing Orders,on the ground that the workman was absent for a span of particular period, amounts to retrenchment in terms of Section 2(oo) of the Industrial Disputes Act. Once it is held, it follows that the provisions of Section 25-F should be complied with. Counsel for the petitioner vehemently argued for retrenchment of the petitioner. Counsel for the respondent, on the other hand , submitted that in the set of circumstances retrenchment could not be granted. It is an admitted position that the amount due as per Section 25-F of the Industrial Disputes Act had not been paid to the petitioner so far. However, the contention by the respondent was that the termination notice itself called upon the petitioner to collect his dues from the office.Counsel for the petitioner submitted that was not sufficient complaince with the provision. In support of that my attention was invited to the case of Pepsu Transport Co. Private Ltd. v. State of Punjab and Ors.. AIR 1968 Punjab and Haryana 90. In that case this Court observed that mere calling upon the worker for collecting dues from the office is not sufficient tender, and was not proper compliance of Section 25-F of the Industrial Disputes Act. In another case of Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. (1964-I-LLJ-351), the Supreme Court observed that Clauses (a) and (b) of Section 25-F of the Industrial Disputes Act are conditions precedent. These observations were made while discussing the Clause (c) of Section 25-F of Industrial Disputes Act. Nonetheless, these observations were to clarify that the other clauses of Section 25-F would be a condition precedent.In case of Management of Ramesh Hydromachs v. The Presiding Officer, Labour Court, Hubli and Anr.. (1986-I-LLJ-334)Karnataka High Court also took the view that the intimation that dues should be collected from the office is not proper compliance of Clause (a) of Section 25-F of the Industrial Disputes Act. Incase of National Iron and Steel Co. Ltd and Ors. v. The State of West Bengal and Anr., (1967-II-LLJ-23), it was held that the compliance of Section 25(a) was a condition precendent. In that case; also, the workman was asked to collect his dues from the office of the factory. Counsel for the respondent brought my attention to the case of Gurmail singh and Ors. etc. v. State of Punjab and Ors., (1991-II-LLJ-76), and submitted that offer to pay the dues would be sufficient compliance. On persual of the facts of that case it was found that a draft covering the dues was sent to the Branch Office of the Corporation so as to enable the worker to get the draft conveniently. In the set of these circumstances, their Lordships observed that there was sufficient compliance. Thus, it would clearly appear that mere intimation to the workman that he should collect his dues from the office on any working day is not enough compliance with the provisions of Section 25-F (a) and (b) of the Industrial Disputes Act. In this case, I, therefore, hold that there was no compliance of 25-F of the Industrial Disputes Act.
9. In view of the findings above, now the question arises as regard the relief to be granted to the workman. In case of Punjab Land Development v. Presiding Officer, Labour Court, (1990-II-LLJ-70) (SC). Thier Lordships , were, considering a bunch of writ petitions in which the management having lost in High Court had gone in appeal before the Supreme Court against the order of retrenchment of a workman who had been reinstated in the service by the Labour Court on finding that there was no proper compliance of Section 25F of the Act. In all these cases, thier Lordships took the view that the reinstatement of the workman was quite proper and correct. In the case of Gammon India Limited v. Niranjan Doss (1984-I-LLJ-233)(SC), it was observed that retrenchment of an employee without following the provisions of section 25-F would be void ab initio. Similar view has been expressed in the case of The Management of Panitola Tea Estate v. The Workmen, (1971-I-LLJ-233)(SC). In that case it was observed that general rule in the absence of the special circumstance would be reinstatement of a workman on finding that his dimissal was wrongful. That observation was qualified by making further observation that this general rule is subject to the discretion, and fair play towards the employee on one hand and the interest of the employer including consideration of discipline in the establishment on the other hand, which require to be duly safeguarded. The question of relief to a workman hi a case like this can be well resolved in the light of the observation in case of Surendera Kumar Verma etc v. The Central GovernmentIndustrial Tribunal-cum Labour Court, New Delhi and Ors. (1981- I-LLH- 386)(SC) at p 389: In that case, thier Lordships observed as follows:
"Nor do we propose to engage ourselves in the unfruitful task of answering the question whether the termination of service of a workman in violation of the provisions of S. 25-F is void ab initio or merely invalid and inoperative, even if it is possible to discover some razor's edge distinction between the Latin void ab initio and the Anglo Saxon "invalid" and "inoperative". Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statues must of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kind of mischief, the Court is not to make inroads by making etymological excursions 'Void ab initio' 'invalid and inoperative' or call it what you will, the workman and the employer are primarily concerned with the consequence of striking down the order of termination of servrices of the workman. Plain common sense dictates that the removal of an ordet terminating the services of workman must ordinarily lead to the reinstatement of the services of the workman. It is as if the order has never been and so it must ordinarily lead to backwages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry must have closed down or might be in severe financial doldrums, the workman concerned might have secured better or other employment elsewhere and so on. In such situation, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is deniel than to the employer if the relief is granted."
10. It, therefore, appears that in a given circumstance there is a room of discretion while granting the relief. In D.K. Yadav's case (supra), thier Lordships of the Supreme Court reinstated the workman with 50% backwages by observing that the workman was to blame himself for the impugned action. In that case also the termination of employment was as per the Standing Orders which provided termination if a workman absents himself from duty for eight days.
11. The catena of rulings above, in respect of relief granted indicates that though reinstatement is a rule, there is a room of discretion in view of the set of circumstances. In this case, I find that the termination order was served long back on September 15, 1976. The Industrial Court gave its decision on September 13, 1979. The workman, thereafter, filed this writ petition on July 20, 1982. He thus waited for about three years since passing of the order by the Industrial Court. There is no explanation why he failed to file petition during little more than three years. The papers before me indicate that when the matter was taken up for final hearing on December 17, 1992, Respondent 2 tendered in the Court a banker's cheque dated December 7, 1992 for Rs. 20,000/- in favour of the petitioner in settlement of full and final claim of the petitioner. The counsel for the petitioner accepted that banker's cheque in lieu of all the claims against Respondent 2. On his statement, this writ petition was dismissed as withdrawn. Against that order, the petitioner took the matter to the Supreme Court by way of civil appeal No. 128 of 1995. The Supreme Court passed order dated December 9, 1984 on the basis of the petitioner's affidavit that neither he appeared-nor did he give consent for the passing of the order by the High Court whereby the matter was disposed of as finally settled for Rs. 20,000/-Their Lordships therefore on December 9, 1994 restored the writ petition in the High Court, and remanded it back for decision according to law. In the context of this, it may be submitted that a draft of Rs. 20,000//- thus tendered by the counsel for the respondent had not been collected by the petitioner . Thereafter the President of the Mercantile Employees' Association, through whom the petitioner had preferred grievance for seeking reference to the Industrial Court, had collected that banker's cheque. The amount was thus locked for a considerable span until the counsel for the petitioner received back that the Banker" cheque from the President, Mercantile Employees' Association, and placed it before this Court on April 25, 1997. It was then ordered to be returned to Respondent. 2.
12. In the context of the aforesaid sequence of events, I further find that there is a specific finding given by the Labour Court that the petitioner was absent without permission from September 3, 1976 to September 15, 1976 and his termination was according to the terms of the Standing Order. I find no good reason to interfere in the well founded order of the Industrial Court. Thus, the petitioner himself is to blame for the impugned order. It was followed by the sequence of events, as mentioned above. In the set of these circumstances, I further find the petitioner has admitted that he used to get Rs. 7/-to 10/- per day by carrying out petty business. His earning was, therefore, just equal to the wages of Rs. 10.69 per day which he used to get during employment. Besides that, a long span of about 21 years elapsed since the time his employment was terminated. The petitioner has put in about six years of employment since his initial appointment on February 7, 1970. At the relevant time, he was inspecting and testing the hydraulic pumps. During last 21 years since service of the petitioner was terminated on September 15, 1976, the petitioner had no occasion to perform the job ot inspection and testing the hydraulic pumps which he was doing while in service. Besides that, during such long span, there is every possibility of development and changes in the design and production of the hudraulic pumps manufactured in the respondent industry. The technological methods employed in the production of such engineering goods also would undergo changes. Therefore, the argument on behalf of Repondent No. 2 deserves due consideration that now the absorption of the petitioner would be very difficult because there may not be suitable job which can be entrusted to the petitioner. That apart, in view of the circumstances referred to above, If find that the ends of justice would be better served by adequately compensating the petitioner as mentioned above. In the past an amount of Rs. 20,000/- was sought to be sufficient to satisfy the claim. That proposal, however, did not materialise for the reasons stated above. Since then 41/2 years elapsed. In my opinion, therefore, an amount of Rs. 50,000/- by way compensation in lieu of past dues, and claim of reinstatement would meet the ends of justice. I order accordingly.