Gujarat High Court
The Maharaja Salt Works Co. Pvt. Ltd. vs Hira Jeram on 26 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/18589/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18589 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18514 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18588 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18590 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18592 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18593 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18595 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18695 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18696 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18697 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18704 of 2016
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THE MAHARAJA SALT WORKS CO. PVT. LTD.
Versus
HIRA JERAM
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Appearance:
MR MUKESH A PATEL(636) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2
NIYANT R BHIMANI(8000) 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 : 26/04/2018
ORAL ORDER
1. Heard Mr. Patel, learned advocate for petitioner and learned advocate for respondents. Page 1 of 57 C/SCA/18589/2016 ORDER
2. In this group of 11 petitions, the petitioner company has challenged common award dated 11.7.2016 passed by learned Labour Court Rajkot in 11 Reference Cases i.e. Reference (LCR) No. 194/2002 to 198/2002, 203/2002 and 204/2002 and 269/2002 to 272/2002 and 273/2002 whereby learned Labour Court declared that the service of the claimants were terminated illegally. Upon such declaration the learned Labour Court awarded lump sum compensation in lieu of reinstatement and backwages. The petitioner is aggrieved by the said direction. Hence captioned petitions.
3. it is declared by learned advocate for the petitioner that in all petitions (captioned above), the petitioner company has prayed for almost similar relief, except with variation in respect of the relevant reference number. 3.1 Therefore, illustratively the relief prayed for in SCA No. 18589/2016 is quoted below: Page 2 of 57 C/SCA/18589/2016 ORDER
"15(A) This Hon'ble Court may kindly be pleased to allow the present petition and be pleased to quash and set aside the common award and order dated 11.07.2016 passed by the Ld. Presiding Officer, Labour Court No.3, Rajkot in Ref (L.C.R) No.196 of 2002 along with other Ref. LCR, further declaring that neither the application of the respondent no.1 is maintainable nor relief prayed therein is grantable to the respondent no.1, in the interest of the justice."
4. As mentioned above the award placed under challenge by means of captioned petitions is common award in respect of 11 reference cases. The party aggrieved by the award i.e. present petitioner company, is common in all petitions. Almost similar contentions against impugned award are raised in all petitions, of course with some minor variations (which are dealt in present order, separately). The sum and substance of which is that the award should be set aside. The respondents in all petitions are represented by same learned advocate. The learned advocate for petitioner and learned advocate for respondents have urged similar submissions on behalf of their respective clients in respect of all petitions. Since similar and common contentions are raised, Page 3 of 57 C/SCA/18589/2016 ORDER all petitions are decided by this common decision.
5. It would not be out of place to take into account the final direction passed by learned Labour Court which are challenged in present petitions. As mentioned above, after having declared that the termination of service of the claimants is illegal the learned Labour Court awarded below mentioned lump sum compensation to each claimants.
Name of the Reference Amount Workman Number Jasmat 194/2002 Rs.45,000/ Mohanbhai Sidik 195/2002 Rs.48,000/ Husseinbhai Hira Jerambhai 196/2002 Rs.70,000/ Ravjibhai 197/2002 Rs.47,000/ Mohanbhai Bhupat 198/2002 Rs.67,000/ Samantbhai Magan Sambhu 203/2002 Rs.65,000/ Shaileshbhai B. 204/2002 Rs.50,000/ Angola Adambhai 269/2002 Rs.45,000/ Sidikbhai Bhikhubhai 270/2002 Rs.46,000/ Mohanbhai Page 4 of 57 C/SCA/18589/2016 ORDER Gulmahmad 271/2002 Rs.75,000/ Arabbhai Sambhubhai 273/2002 Rs.85,000/ Motibhai Varso Kunvarben Sambhubhai and Bababhai Sambhubhai
6. So far as factual background is concerned, it has emerged from the award and from rival submissions that concerned 11 workmen (employees of present petitioner) raised industrial dispute with the allegation that the opponent employer (present petitioner company) illegally terminated their service on 30.11.2000. Appropriate government referred the dispute, vide order of reference dated 15.7.2002, for adjudication to learned Labour Court at Rajkot. Learned Labour Court registered the said dispute as separate reference cases (i.e. reference number 194/2002 to 198/2002, 203/2002 and 204/2002 and 269/2002 to 272/2002 and 273/2002.
Page 5 of 57 C/SCA/18589/2016 ORDER
7. In their respective statements of claim, the claimants alleged that they were employees of the opponent company and were employed as Pump man, Security man, Driver, Mistry, Chemist and Labourer. The claimants also alleged that they were employed by the opponent company since many years and they were regular and permanent employees. The claimants also alleged that the company was not paying salary regularly and their unpaid wages had accumulated for almost 8 months. The claimants also alleged that to demand the unpaid wages they had issued a notice. According to the claimants their demand infuriated the Company and therefore the company abruptly terminated their service on 30.11.2000 by oral order and without following procedure prescribed by law and in violation of principle of natural justice. The claimants also alleged that after terminating their service the company engaged other persons. According to the claimants the Company committed breach of statutory provision. With such allegations, the claimants demanded Page 6 of 57 C/SCA/18589/2016 ORDER reinstatement in service with consequential benefits. It is pertinent that the claimants also placed before learned Labour Court the details with regard to total length of service rendered by them and the salary paid to them at the time when the company terminated their service. The said details are recapitulated and summarised by learned Labour Court in Para2 of the award, which reads thus:
Reference Total Salary Designation No. Length of Service 194/2002 4 years Rs.1200/ Pump Man 195/2002 5 years Rs.1400/ Security Man 196/2002 8 years Rs.2100/ Driver 197/2002 5 years Rs.1300/ Pump Man 198/2002 7 years Rs.2000/ Mistry 203/2002 7 years Rs.1958/ Driver 204/2002 4 years Rs.2000/ Chemist 269/2002 4 years Rs.1200/ Labourer 270/2002 5 years Rs.1200/ Pump Man 271/2002 12 years Rs.2100/ Driver 273/2002 30 years Rs.2160/ Pump Man Page 7 of 57 C/SCA/18589/2016 ORDER
8. In response to the Notice issued by learned Labour Court, the opponent Company appeared before learned Labour Court and filed its Reply. The gist of the reply filed by the Company is summarised by learned Labour Court in Para3 of the award, which gives out that the Company claimed that:
(a) the Company was facing and passing through serious financial crises so much so that the company had difficulty in payment of wages to the workmen.
(b) it had not terminated service of the claimants;
(c) certain claimants had abandoned the service;
(d) whereas 4 claimants had voluntarily resigned and collected the wages and had issued receipt acknowledging the payment;
(e) Since the workmen had abandoned the service or submitted resignation, question of issuing notice and / or notifying senior list and/ or payment of compensation did not arise;Page 8 of 57 C/SCA/18589/2016 ORDER
9. Thus, in substance, the Company emphasised that it had not terminated service of the claimants and that there was no overt act on its part and the claimants had abandoned the service, except the 4 claimants who had (allegedly) submitted resignation.
10. After the parties completed their pleadings, the claimants and the Company placed on record documents. The details of the documents placed on record by the petitioner Company is described by the learned Labour Court in Paras6 and 7 of the award whereas the details of the documents placed on record by the claimants are mentioned in Para 4 of the award.
11. Before proceeding further, it is relevant to mention at this stage that in Para5 of the award the learned Labour Court has recorded that both sides had jointly and voluntarily requested to consolidate all reference cases for all purposes including evidence. Accordingly the claimants as Page 9 of 57 C/SCA/18589/2016 ORDER well as the Company led oral evidence only in respect of one reference case and requested the learned Labour Court to treat the said evidence as evidence for all reference cases. For an on behalf of the claimants deposition of one Sambhubhai Motibhai was recorded and some claimants had filed affidavit in lieu of examinationinchief. On behalf of Company, evidence of one Mr. S.P. Puriyana was recorded.
12. After the contesting parties closed oral documentary evidence, learned Labour Court heard rival submissions by contesting parties. Upon conclusion of the submission learned Labour Court considered the material available on record and the rival submissions. On consideration of material available on record, relevant provisions and rival submissions, learned Labour Court reached to the findings of fact that the workmen proved that the Company illegally terminated their service and that the company failed to establish that the claimants had abandoned the Page 10 of 57 C/SCA/18589/2016 ORDER service and/ or that some of them had submitted resignation. Having reached said conclusion, learned Labour Court considered the issue about appropriate relief. Learned Labour Court reached to the decision that in light of facts of the case, though termination of service is found illegal, final relief deserves to be moulded i.e. instead of granting reinstatement and backwages lump sum compensation should be granted. Therefore, the learned Labour Court passed above mentioned directions.
13. The workmen seems to have accepted the award inasmuch as until now the claimants have not challenged the learned Labour Court's decision refusing the relief in form of reinstatement and / or against denial of backwages. The workmen have not challenged the decision granting lump sum compensation and have also not raised claim for enhancement of the compensation. Page 11 of 57 C/SCA/18589/2016 ORDER
14. From the award it has emerged that one of the claimants died during pendency of the proceedings. His heirs/ legal representatives were impleaded in the pending proceedings.
15. Mr. Patel, learned advocate for the Company assailed the award. He submitted that the learned Labour Court failed to appreciate that the claimants, except the 4 claimants who tendered resignation, had abandoned their services. He also submitted that in case of the 4 claimants, who, according to the Company, tendered resignation, learned Labour Court failed to appreciate the said submission and the Court committed error in holding that the Company had terminated their service. According to learned advocate for the petitioner the conclusion by learned Labour Court that it is the Company who had terminated service of the claimants as well as conclusion that the Company committed breach of statutory provision, is incorrect, arbitrary and unjustified. According to the learned Page 12 of 57 C/SCA/18589/2016 ORDER advocate for the petitioner the learned Labour Court failed to appreciate that the claimants failed to place any evidence on record to establish that they had worked for 240 days. According to learned advocate for petitioner the learned Labour Court committed error in drawing adverse inference against the Company with regard to attendance of the claimants and in assuming that the claimants had worked for 240 days. The learned advocate for the petitioner submitted that the claimants raised dispute about 18 months after the date of termination and that the claimants did not place any evidence on record with regard to their appointment and/ or with regard to termination of their services.
16. I have considered rival submissions. I have also considered material available on record and common award passed by learned Labour Court.
17. In all 11 claimants had raised industrial dispute and their disputes were referred to Page 13 of 57 C/SCA/18589/2016 ORDER learned Labour Court at Rajkot, for adjudication. The said claim and dispute by 11 claimants culminated into above mentioned 11 separate reference cases before the learned Labour Court.
18. After adjudication of said reference cases, the learned Labour Court, for the reasons recorded in common award, reached to the conclusion that the opponent employer (the company) terminated service of said 11 claimants and that the Company terminated service of the said 11 claimants without following procedure prescribed. Having reached such conclusion, learned Labour Court deemed it proper to award lump sum compensation in lieu of reinstatement and another consequential benefits. Learned Labour Court, after taking into account period of service rendered by each claimant and the claimant's status after termination of service i.e. whether he was gainfully employed elsewhere or not, determined the amount of compensation.The Page 14 of 57 C/SCA/18589/2016 ORDER details are mentioned in foregoing part of this order.
19. So far as 11th claimant i.e. Sambhubhai is concerned, he died during proceedings. Learned Labour Court awarded Rs.85,000/towards lump sum compensation for the said 11th claimant Sambhubhai and directed the respondent to pay the said amount to the heirs / legal representatives of the said claimants.
20. The Company is aggrieved by the common award.
21. Mr. Patel, learned advocate for the Company made an attempt to segregate the cases of the said 11 cases in 3 categories/ groups on the premise that the company had opposed the claims by the claimants on said 3 broad categories namely:
(a) 4 claimants (Mr. Hira Jerambhai, Mr. Magan Sambhu, Mr.Shaileshbhai B. Angola and Mr.Gulmahmad Arabbhai) had settled their claim Page 15 of 57 C/SCA/18589/2016 ORDER with the Company;
(b) 2 claimants (Mr. Bhikhubhai Mohanbhai and Mr.Sambhu) had voluntarily abandoned the service and voluntarily stopped reporting for duty, though the Company had not terminated their service; and
(c) Names of 5 claimants (namely Ravjibhai Mohanbhai, Mr. Sidik Husseinbhai, Mr. Jasmat Mohanbhai, Mr. Bhupat Samantbhai and Mr. Adambhai Sidikbhai) did not exist on the rolls of the Company and that therefore their claim against the company was unjustified and untenable.
22. I have considered rival submissions and material available on record. I have also considered impugned award.
23. At the outset it is relevant to deal with the petitioner's contention that the petitioner is a seasonal establishment. There is nothing on record even to indicate that the petitioner undertaking is and can be considered "Seasonal Page 16 of 57 C/SCA/18589/2016 ORDER Establishment/ Industry". In this context, it is relevant and necessary to take into account provision under Section 25(A)(2) which reads thus:
"25(A) Application of Section 25C to 25E(1)Sections 25C to 25E inclusive shall not apply to Industrial Establishments to which Chapter VB applies,
(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or
(b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final."
24. The petitioner did not pelad/ did not prove such claim before the learned Labour Court. Any document (Certificate) issued by appropriate government declaring the petitioner establishment as Seasonal undertaking was not placed on record before learned Labour Court.
25. When learned advocate for petitioner was confronted with the said lacuna and also with the findings of facts recorded by learned Labour Court in impugned award on this count, learned Page 17 of 57 C/SCA/18589/2016 ORDER advocate for the petitioner tried to change the stance of claim and submitted that what the petitioner actually claims is not that it is a seasonal establishment but its that activities are of seasonal character.
26. On this count also it is pertinent to note that the Petitioner, as recorded by learned Labour Court, failed to place any evidence on record to establish that (i) its primary and fundamental or main activities are of seasonal character and/ or the activities are performed intermittently; and (ii) the concerned workmen were exclusively employedengaged only for activity for seasonal character or activity performed intermittently.
27. Any evidence worth its name which would establish above mentioned two basic criteria and requirement was not placed before the learned Labour Court.
Page 18 of 57 C/SCA/18589/2016 ORDER
28. Even as of now such evidence is not available on record of this group of petitions.
29. Besides this, there is conspicuous absence of cogent evidence to establish that every year during alleged and so called "offseason" the claimants were regularly and officially relieved and they were, subsequently i.e. upon commencement of new season, again called for work and/ or during such period retaining allowance was paid to the claimants.
30. In absence of any evidence which would establish above mentioned 2 basic criteria to determine as to whether the industry is seasonal industry and / or whether the main and principal activities of the industry/ establishment are seasonal and are carried on intermittently and whether the claimants were engaged only for such seasonal activities or the activities which are undertaken intermittently, such bold and unsubstantial claim and contention cannot be Page 19 of 57 C/SCA/18589/2016 ORDER entertained and accepted at this stage, more so when there is no evidence material on record which would support and substantiate and prove said statement and submission.
31. It is pertinent that even in purely seasonal industry there are several jobs which are undertaken through out the year irrespective of the fact that the main activity of the industry gets suspended during offseason (e.g. work of sweeper/ cleaner and work related repairs and maintenance/ work administrative and accounts department as well as other post manufacturing activities, etc.)
32. In this view of the matter and in absence of any evidence such bare, bold and unsubstantiated defence that the concerned establishment is seasonal industry or it is engaged in activities which are seasonal and are undertaken intermittently, cannot be accepted and that therefore it cannot be said that learned Labour Page 20 of 57 C/SCA/18589/2016 ORDER Court committed any error in the award/ its decision.
33. In this context it is also relevant to note that on one hand the petitioner tried to claim that it is a seasonal industry and subsequently the petitioner tried to change the stance before this Court and claimed that its activities are of seasonal character and undertaken intermittent. Having raised such two distinct contention, the petitioner also tried to contend that the claimants had not worked for 240 days which is minimum requirement for invoking protection available under Section 25F of the Act. In the said process i.e. while raising the said 2nd contention the petitioner lost sight of the fact that according to the provisions under Section 25(B) of the Act the requirement of 240 days would not be relevant in case of "seasonal industry" or intermittent activities where workmen are not engaged during offseason. Page 21 of 57 C/SCA/18589/2016 ORDER
34. Under the circumstances, the petitioner's contention raised on the ground of seasonal industry or intermittent activities cannot be sustained. The submissions and contentions on said premise deserve to be rejected and they are hereby, accordingly, rejected. It cannot be said that learned Labour Court committed any error on this count.
35. As mentioned above, in respect of certain group of claimants/ workmen (more particularly in respect of claimant Mr. Bhikhubhai Mohanbahi and claimant Mr. Sambhubhai Motibhai) the petitioner claimed and alleged that the said claimants voluntarily abandoned the work.
36. In this context, it is necessary to take into account the undisputed fact that the petitioner failed to point out any provision from standing orders (either the petitioner's own settled/ certified standing order or Model standing orders) that there is a provision/ Rule under the Page 22 of 57 C/SCA/18589/2016 ORDER standing orders which provide that continuous absence for more than specified number of days would result into lost of lien.
37. In absence of such provisions there could not be any presumption about voluntary abandonment of work.
38. Even if it is assumed that the claimants remained unauthorisedly absence for more number of days then at the most it can be treated as misconduct. When unauthorised absence of the concerned workmen is considered misconduct, then appropriate disciplinary proceedings in accordance with provisions under standing orders should be carried out and the employer should comply principles of natural justice. In present case such proceedings should have been conducted. It is an undisputed fact that in present case the petitioner did not conduct domestic inquiry in accordance with provision under standing orders and did not grant opportunity of hearing before Page 23 of 57 C/SCA/18589/2016 ORDER deleting the names of the claimants from the register and before assuming that the claimants voluntarily abandoned their services.
39. In absence of disciplinary action and when the conduct of alleged unauthorised absence is not treated as misconduct but treated on assumption as abandonment of service, the action of treating workman's services having come to an end would amount to retrenchment. 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 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 Page 24 of 57 C/SCA/18589/2016 ORDER 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 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 Page 25 of 57 C/SCA/18589/2016 ORDER 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 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 Page 26 of 57 C/SCA/18589/2016 ORDER 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 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 Page 27 of 57 C/SCA/18589/2016 ORDER 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 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 Page 28 of 57 C/SCA/18589/2016 ORDER 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." 39.1 On this count, profitable reference can also be had to decision in case of Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court. [(1990) 3 SCC 682]
40. On one hand, it is established that the petitioner did not treat the alleged conduct of the workmen as misconduct and the petitioner did not conduct any disciplinary proceedings against Page 29 of 57 C/SCA/18589/2016 ORDER the said workmen for alleged absence. On the other hand, the employer did not comply the condition prescribed under Section 25F. Thus its decision and action of treating the alleged conduct of the workmen as voluntary abandonment of service and its conduct of canceling workmen's name from the register would amount to retrenchment as held by Hon'ble Apex Court in above mentioned decision.
41. Thus, from both perspective the petitioner's action against the said workmen should fail it being illegal and contrary to the provisions under the Act/ Standing Orders.
42. Besides above mentioned two perspectives which emerged from petitioner's allegation that the said workmen voluntarily abandoned their service, a more important and relevant aspect which also emerges from the record is that actually the petitioner failed to establish that the said workmen were not reporting for duty and/ Page 30 of 57 C/SCA/18589/2016 ORDER or they remained absent from duty and their services were not terminated by the company.
43. In absence of any evidence on this count, more particularly the evidence to support the allegations that the workmen voluntarily remained absent from duty and that intimation/ instruction to report for and resume duties were issued above mentioned 2 situations, would, actually not arise in present case. Nonetheless, even if it is assumed that there was substance in the petitioner company's claim then also above mentioned 2 aspects make out clear that the termination of the service of the said claimants was not in accordance with law and that therefore the findings and conclusion by learned Labour Court holding that the said persons were illegally terminated cannot be faulted. In light of the decision by Hon'ble Apex Court in case of Punjab Land Development and Reclamation Corporation Ltd (Supra) and the decision in case of D.K.Yadav v. JMA Industries Ltd. (Supra) and Page 31 of 57 C/SCA/18589/2016 ORDER decision by Hon'ble Apex Court in case of SBI v. N. Sudara Money [(1976) 1 SCC 822), the position which emerges is to the effect that in absence of any provision under Standing Order which entails termination of service on ground of loss of lien in case where the employee abstains from service for long period the employer has option of treating prolong absence of an employee as misconduct. In such case the employer would be obliged to comply principles of natural justice and take disciplinary action for such misconduct, in accordance with law and principles of natural justice if the said cause of action is not followed and the employer invokes the right to assume that employee has abandoned the service and accordingly the service of the employee is deemed to have been abandoned, then such action of the employer would amount to retrenchment which would entail obligation to comply the conditions prescribed under Section 25F of the Industrial Disputes Act. In present case it has emerged from the foregoing discussion that the Page 32 of 57 C/SCA/18589/2016 ORDER employer failed on both counts inasmuch as the petitioner neither treated the alleged absence of the concerned employees as misconduct and did not take disciplinary action in accordance with law and principles of natural justice. The said failure branded the employer's decision namely treating the alleged absence of the employees as abandonment of service, as retrenchment (Section 2(oo) read with Section 25F of Industrial Disputes Act). However the petitioner did not comply the condition under Section 25F. Therefore, learned Court is right and justified in holding the petitioner's action as illegal and in breach of statutory provisions. The said decision by learned Court cannot be faulted, more particularly in light of undisputed fact that the petitioner did not comply the condition under Section 25F and the petitioner neither took disciplinary action in accordance with law and principles of natural justice.
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44. In respect of about 5 workmenclaimants namely Mr. Ravjibhai Mohanbhai, Mr. Sidik Husseinbhai, Mr. Jasmat Mohanbhai, Mr. Bhupat Samantbhai and Mr. Adambhai Sidikbhai, learned advocate for the petitioner company tried to contend that their names were not on the register of the Company on the date of dispute and that therefore there was no justification to consider them workmen of the company and it could not have been assumed that the said claimants were workmen of the petitioner company.
45. In this context it is pertinent to note that the petitioner, undisputedly, has installation at 2 sites namely Varsha Medhi and Lavanpur. The learned Labour Court, after examining the records, detected that the Company maintained separate record/ registers for the said 2 sites and it conveniently changed the names of workmen from one register to another i.e. from register pertaining to Varsha Medhi to register pertaining to Lavanpur and viceaversa. Learned Labour Page 34 of 57 C/SCA/18589/2016 ORDER Court also detected that the Company had placed on record, the documents pertaining to one site for certain period and for other period the Company placed on record the registers pertaining to other site. Differently put the Company, as observed by the learned Court, did not place on record all documents/ register of both sites for entire period in question. The learned Labour Court has recorded findings of fact that by placing on record the documents of one site for certain period and documents related to other site for other period the Company kept back the details and record related to concerned 5 persons so as to create an impression that names of the said persons are not on its record. Despite such attempt by the Company the learned Labour Court could trace names of some of the concerned persons in some of the registers placed on record. These aspects are elaborately mentioned and considered by learned Labour Court in Para 13(E) of the award.
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46. There is nothing on record, neither any material nor justification in any other form, which can convince this Court to hold that the findings of fact recorded by learned Labour Court are perverse.
47. The said allegation is considered and dealt with, in considerable detail, by the learned Labour Court and relevant discussion is found in Para13(E) of the award.
48. On reading the award and more particularly the discussion in Para13, it becomes clear that learned Labour Court has recorded findings of facts which are supported by sufficient discussion and sufficient as well as satisfactory reasons which, in turn, supported by cogent evidence available on record.
49. By any stretch of imagination it cannot be said that the findings of fact recorded by learned Labour Court in Para13, more Page 36 of 57 C/SCA/18589/2016 ORDER particularly in Para13(E), so far as above mentioned defence and allegations of the petitioner Company are concerned, are not supported by evidence on record and/ or that the said facts are contrary to the evidence on record and / or said findings of facts are perverse.
50. The petitioner has failed to point out any material from record which would convince this Court to hold that the findings of fact recorded by learned Labour Court in Para13 more particularly in Para13(E) so far as this particular contention is concerned, are not sustainable.
51. In this view of the matter, the said findings of fact recorded by learned Labour Court cannot be faulted and there is no basis or justification to interfere with the said finding of fact in exercise of writ jurisdiction/ supervisory jurisdiction. Therefore, the said contention should also fail.
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52. In respect of claimants Mr. Hira Jerambhai, Mr. Magan Sambhu, Mr. Shaileshbhai B. Angola and Mr. Gulmahmad Arabbhai, learned advocate for petitioner tried to contend that the said claimants had settled their final account and had voluntarily left the service after accepting/ settling their account finally and after accepting of dues payable to them.
53. This aspect is elaborately and exhaustively adjudicated and dealt with by the learned Labour Court in the award, more particularly by findings of fact recorded in Para13 [Para13(D)] of the award. Even the said findings of fact are supported by sufficient discussion and satisfactory reasons which, in turn, are supported by cogent evidence available on record.
54. By any stretch of imagination it cannot be said that the findings of fact recorded by learned Labour Court in Para13, more particularly in Para13(D), so far as above Page 38 of 57 C/SCA/18589/2016 ORDER mentioned defence and allegations of the petitioner Company are concerned, are not supported by evidence on record and/ or that the said facts are contrary to the evidence on record and / or said findings of facts are perverse. The petitioner has failed to point out any material from record of present petition which would convince this Court to hold that the finding of fact recorded by learned Labour Court in Para13 more particularly in Para13(D) so far as this particular contention is concerned, are not sustainable.
55. In this view of the matter, the said findings of fact recorded by learned Labour Court cannot be faulted and there is no basis or justification to interfere with the said finding of fact in exercise of writ jurisdiction/ supervisory jurisdiction. Therefore, the said contention should also fail.
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56. The document on which the petitioner company placed reliance before learned Labour Court and so also before this Court to substantiate the said defence/ submission with regard to above mentioned workmen viz. so called resignations is placed on record. On reading the said document i.e. so called resignation and/ or statement of Account, in any manner do not reflect that the claimants settled their account while leaving the service or that the said claimants tendered resignation and settled their account finally.
57. On the contrary, as rightly recorded by learned Labour Court, it emerges from plain reading of the said document/s that the workmen issued said receipt/s in acknowledgment of the payment towards unpaid salary for the period upto 2000 (which was paid in February, 2001). The said document is merely an acknowledgment of payment of unpaid salary and by any stretch of imagination it cannot be said that the said document is letter of resignation or that by Page 40 of 57 C/SCA/18589/2016 ORDER accepting the said payment the claimants had settled their account finally with the petitioner company so as to relinquish the service.
58. On strength of the said document it cannot be concluded, rather it cannot be even assumed that the said claimant left the service on their own volition and settled their Account with the employer.
59. Except the said document/s the petitioner failed to place/ show any material on record to demonstrate that the said claimants had tendered resignation and/ or they had voluntarily given up the service and/ or that they had settled their account by accepting full and final payment.
60. The learned Labour Court has, as mentioned above, elaborately discussed this aspect in the award and recorded the findings which are duly supported with cogent reason in Para13(D) of the award.
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61. As mentioned above, there is nothing on record to convince this Court to disagree with the said finding of fact or to disturb the said findings of fact or to hold that the said findings are perverse therefore said contention should also fail.
62. Foregoing discussion has brought out that three principal line of defence urged by learned advocate for the petitioner by segregating the claimants in three groups, is without substance and merits. There is no material on record which would support and justify the said distinction amongst the claimants sought to be made by the petitioner and/or to support and justify the contentions against the award in respect of the claimants segregated in the said three groups by learned advocate for the petitioner.
63. As mentioned earlier, learned advocate for the petitioner also submitted that the claimants had not worked for 240 days. One part of the Page 42 of 57 C/SCA/18589/2016 ORDER said contentions is dealt with in foregoing discussion viz. if the petitioner wants to claim that its industry is seasonal industry or that the claimants were engaged exclusively for the activities which were undertaken intermittently, then the requirement of minimum attendance of 240 days would not be applicable in case the workmen who are not engaged during off season and/or who are working in seasonal industry and/or who are engaged for activities which are essentially on intermittent nature.
64. On the other hand, it is pertinent to note that the claimants specifically contended that they had worked continuously and regularly without any break and that they had worked for more than 240 days.
65. It was an undisputed fact before the learned Labour Court that the petitioner company did not issue wage slip and/or attendance card and that, therefore, the claimants were unable to place any Page 43 of 57 C/SCA/18589/2016 ORDER document on record. The said documents, i.e. wage register / attendance register were in exclusive possession of the company. In the decision by Hon'ble Apex Court in case of R.M.Yellati v. Asstt. Executive Engineer[(2006) 1 SCC 106], it is explained that when the employer does not issue pay receipt, attendance card, identity card, etc and does not place on record the pay and wage Registers for the relevant period then the obligation to prove that the workmen did not work for 240 days in preceding 12 months shifts to the employer. In present case the petitioner failed to place relevant material on record and to demonstrate that none of the claimants had worked for 240 days in preceding 12 months or in any year.
66. At this stage, it is relevant to note that such segregation of the workmen in three groups and the contentions which are accordingly raised by learned advocate for the petitioner are raised and put forward in absence of any pleading to Page 44 of 57 C/SCA/18589/2016 ORDER that effect.
67. During hearing of this group of petitions, this Court specifically asked learned advocate to clarify as to whether the company had filed separate written statement (reply) in respect of each reference case with specific and different contention as regards each claimant or common reply / written statement was filed. In reply to the query by the Court learned advocate for the petitioners declared and clarified that though separate written statement (reply) were filed, however all replies contained identical details and contentions with reference to all claimants.
68. From the said fact with regard to written statement and fair declaration by the learned advocate for the petitioners, it becomes clear that the petitioners' attempt of segregating the workmen in three groups which is urged by learned advocate for the petitioners before this Court, was never raised or submitted before the learned Page 45 of 57 C/SCA/18589/2016 ORDER Labour Court and the written statement is completely silent on this count.
69. The written statement filed by the company is found on the record of the petition. From the said written statement, it comes out that any of the contentions were not even raised in the written statement and were not even urged before the Court during the submissions.
70. Even the allegation/ contention that the claimants had not worked for 240 days was not even raised in the reply. The company never disputed the said factum.
71. Under the circumstances, actually, for the workmen, the question to prove that they worked for 240 days, did not arise (since the said fact was not even disputed by the petitioner in its reply).
72. The only contention / defence which the Page 46 of 57 C/SCA/18589/2016 ORDER company raised in respect of all claimants in its separate but identical written statement was that all claimants had voluntarily left service, the company did not terminate them but the claimants stopped reporting for work and that, therefore, question of preparing and publishing seniority list and/or payment of retrenchment compensation did not arise.
73. Of course, one defence besides the defence on ground of voluntary abandonment viz. that certain workmen had tendered resignation and accepted final settlement of accounts was raised by the company.
74. However, so far as the said contention is concerned, foregoing discussion in present order [as well as discussion by the learned Labour Court in paras 13(B) and 13(D)] has brought out that the said allegation and defence of the company is without merits and substance and contrary to the documents placed on record by the Page 47 of 57 C/SCA/18589/2016 ORDER company.
75. On reading the award it comes out clearly that it is after careful and detailed evaluation and appreciation of the oral as well as documentary evidence available on record, the learned Labour Court reached to and recorded specific findings of fact that
(a) the company failed to prove that the claimants voluntarily abandoned the service;
(b) the claimants proved that the Company terminated their service and that they had not voluntarily abandoned the service and/ or had not submitted resignations, as alleged by the Company;
(c) that the company had, undisputedly, not followed the procedure prescribed under section 25F of the Act inasmuch as the notice as contemplated under section 25F was not issued and/or notice pay and retrenchment compensation were not paid by the company;
(d) that the company failed to comply the Page 48 of 57 C/SCA/18589/2016 ORDER requirement under Rule 81 of Industrial Disputes (Gujarat) Rules inasmuch as the company did not prepare and publish seniority list 7 days before the date on which the service of the claimants came to be discontinued;
(e) the company failed to prove its allegation and claim that some of the workmen had tendered resignation and finally settled their accounts;
(f) the company committed violation of principles of natural justice;
(g) the company committed breach of section 25F.
76. From the award, it clearly emerges that the learned Labour Court has recorded specific detailed, cogent and satisfactory reasons in support of aforesaid conclusions and the findings of fact recorded by the learned Labour Court and that the reasons recorded by the learned Labour Court are supported by oral as well as documentary evidence on record.
77. The findings of fact recorded by the learned Page 49 of 57 C/SCA/18589/2016 ORDER Labour Court cannot be termed perverse or even contrary to evidence on record or without support of any evidence.
78. The petitioner has failed to show any material from the document to demonstrate that and to convince this Court to hold that the findings of fact recorded by the learned Labour Court are perverse or that they warrant interference by this Court.
79. It is also relevant to note that the company claimed, in its written statement, that since long time, the company had been facing financial crises and its financial position was weak and the company did not have funds even to pay salary to the workmen. The said submission / statement in the written statement clarifies and supports the fact that the company had paid unpaid salary (upto October, 2000) to some of the workmen in February 2001 which was due and payable. Page 50 of 57 C/SCA/18589/2016 ORDER
80. At this stage it would be appropriate to deal with the decision on which the learned advocate for the petitioner placed reliance so as to claim that since some of the workmen abstained from duty, provision of retrenchment will not be applicable and learned Labour Court committed error in applying the provisions of retrenchment in case of persons who abstained from duty.
81. The learned advocate placed reliance on decision in case of Kshetriya Shri Gandhi Ashram, Magahar v. Ram Samujh Maurya and another (1990 LAB. I.C. 1406). In the facts and circumstances of the case the said decision does not render any assistance to the petitioners. In this context it is also relevant and necessary to consider the observation by Hon'ble Apex Court in Paras4 to 11 and Paras. 15 and 16 of the decision in case of D.K.Yadav v. JMA Industries Ltd. [(1993) 3 SCC 259] as well as the observation by Hon'ble Apex Court in case of Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Page 51 of 57 C/SCA/18589/2016 ORDER Officer, Labour Court [(1990) 3 SCC 682]. In light of the observation by Hon'ble Apex Court in the said decisions, the cited decision does not help the petitioners. Besides this, when factual aspects involved in the cited decision are taken into account then it comes out clearly that on that ground also the cited decisions does not help the petitioners because the facts involved in present case are materially different.
82. From the cited decision it emerges that the concerned workman had abstained from duty continuously for more than 2 years and that inspite of large number of letters, which were forwarded by the Company to the concerned workman instructing him to report for duty and also notifying that failure to report for duty would entail consequences, the concerned workman continued to abstain from duty and did not resume his duty. Besides writing several letters and instruction to the concerned workman, the Company had even issued various notices asking the Page 52 of 57 C/SCA/18589/2016 ORDER workman to join duty and published the notice in the newspaper. Despite such efforts by the Company the workman neither cared to join the duty nor contacted the company and continued to remain absent.
83. In present case the petitioner has failed to show that such attempts were ever made by the petitioner in respect of the concerned persons.
84. Besides this, the petitioner could not establish before the learned Labour Court that the concerned workmen had remained absent, that too for such long period.
85. Under the circumstances, even on factual backdrop the decision does not render any assistance to the petitioner.
86. Likewise, in light of the decision by Hon'ble Apex Court in case of of D.K.Yadav v. JMA Industries Ltd. [(1993) 3 SCC 259] as well as in Page 53 of 57 C/SCA/18589/2016 ORDER case of Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court [(1990) 3 SCC 682] the other decision on which the learned advocate for petitioner placed reliance (i.e. decision by Bombay High Court in case of Babusaheb Devgonda Patil v. Managing Director, Shri Panchgonda Sahakari Sakhar Kharkhana Ltd. and another) also does not render assistance to present petitioner.
87. Besides this, even on factual backdrop the said decision does not render any assistance to the petitioner because in the said 2nd decision also the concerned workman had abstained from duty for almost 3 years i.e. from July, 1979 to June, 1982. It is also relevant to note that in the said 2nd decision on which learned advocate for petitioner placed reliance, the Court has observed that :
"In the end everything ultimately depends on the established facts and circumstances of each case and it is not possible to lay down a rigid proposition of universal application".Page 54 of 57 C/SCA/18589/2016 ORDER
88. The Hon'ble Court also clarified that what is held by the learned Single Judge must necessarily be restricted strictly and only to the facts concurrently found therein and established and that it would not be the intention of learned Single Judge to lay down any principle of law or any legal test contrary to or inconsistent with the legal position laid down by Apex Court in case of L. Robert D'Souza v. Executive Engingeer, Southern Railway and another.
89. In light of said observation it would also be relevant to take into account observation by Hon'ble Apex Court in case of L. Robert D'Souza v. Executive Engineer, Southern Railway and another [(1982) 1 SCC 645] (which is reproduced by the Hon'ble Court in the cited decision). The relevant observation in the decision in case of L. Robert D'Souza v. Executive Engineer, Southern Railway and another reads thus:
"This Court has consistently held in The State Bank of India Vs. Shri N. Sundara Money., Hindustan Steel Ltd. Vs. The Presiding Officer, Labour Court, Orissa and Page 55 of 57 C/SCA/18589/2016 ORDER Others and Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukherji and Others, that the expression 'termination of service for any reason whatsoever' now covers every kind of termination of service except those not expressly included in Section 25F or not expressly provided for by other provisions of the Act such as Section 25FF and 25FFF." and further "Therefore, we adopt as binding the wellsettled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories i.e. (i) termination by way of punishment inflicted pursuant to disciplinary action;
(ii) voluntary retirement of the workman; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; (iv) or termination of the service on the ground of continued illhealth (pages 333 and 334 respectively of the report)
90. In light of the said observation by Hon'ble Apex Court in case of L. Robert D'Souza v. Executive Engineer, Southern Railway and another, the cited decisions even otherwise does not render any assistance to the petitioner.
91. In light of foregoing discussion, it becomes clear that the award impugned in present petitions is neither erroneous nor perverse and the award does not suffer from any error of law or jurisdiction.
92. There is no justification to interfere with Page 56 of 57 C/SCA/18589/2016 ORDER the impugned award and any case for interference is not made out.
93. On overall consideration of rival contentions and material available on record, the petitions fail and do not deserve to be accepted. There is no justification to hold that the learned Labour Court has not committed any error and/or that the award is defective. Therefore, the petitions are not accepted. The captioned petitions are accordingly rejected. Notice in each petition is discharged.
(K.M.THAKER, J) saj Page 57 of 57