Punjab-Haryana High Court
Om Prakash vs Presiding Officer, Industrial ... on 10 September, 1997
Equivalent citations: (1998)IILLJ542P&H, (1997)117PLR744
Author: Balwant Rai
Bench: Balwant Rai
JUDGMENT Jawahar Lal Gupta, J.
1. The petitioner was employed with the Khadi Ashram, Panipat. He was absent from duty allegedly on account of illness from April 21, 1988 to November 5, 1988. Since the petitioner was employed as a Salesman and the work was suffering on account of his not attending to his duties, the management passed an order dated November 5, 1988 informing him that instead of joining duty at Jalandhar in pursuance of the order dated April 23, 1988, he had been "taking leave on the basis of illness. This has continued for over six months". He was called upon to send a medical certificate. He refused to do so. Thereafter, the management informed him that "seeing the above situation and your absence for over six months, it is not possible for the Chairman to retain your services. You are informed that when you are fit to resume duty and are desirous to join duty at the Ashram, you can again give an application on which as per situation and the need the same can be considered." Aggrieved by this order, the petitioner raised an industrial dispute. It was referred to the Labour Court inter-alia affirmed that the workman had been discharged "on account of protracted illness. " He had admitted in his cross-examination that after having recovered from illness, he did not write any letter requesting the management to allow him to join the duties nor did he apply for appointment in terms of order dated November 5, 1988. He had submitted no medical certificate.. In accordance with the provisions of: Clause 7-E of Rule 18 of the Rules governing his conditions of service, the termination was "by way of discharge......." It was also noticed that he had in fact resorted to this method to avoid joining at Jalandhar to which place he had been transferred. On a consideration of these matters, the Labour Court rejected the claim made by the petitioner. Aggrieved by the award, the petitioner filed the present writ petition.
2. Mr. Ram Kumar Malik, learned counsel for the petitioner has contended that the order of termination was violative of provisions of Section 25-F of the Industrial Disputes Act. That being so, the order of termination could not be sustained. In any event, the learned counsel submits that the provisions contained in clause 7-E of Rule 18 are contrary to the industrial law. No effect could be given thereto. Learned counsel has placed reliance on the decision of Their Lordships of the Supreme Court in Santosh Gupta v. State Bank of Patiala (1980-H-LLJ-72). On the other hand, it has been contended by learned counsel for the respondents that the petitioner was in fact, not sick. He had started absenting himself from duty by merely sending leave applications as he did not want to join at Jalandhar in pursuance of the orders of transfer which were passed against him. In fact, he was running a parallel business in the premises which had been allotted to his father by the respondents who had since expired. The petitioner has neither vacated the premises nor joined duty. He was gainfully employed and was really using the process of law for the purpose of making unholy gains.
3. It is the admitted position that the petitioner had not attended to his duties from April 21, 1988 to November 5,1988. It is also not disputed that inspite of being asked, the petitioner had not produced any medical certificate. There was thus no proof of his actually being unwell. Still further, it is also not disputed that the petitioner had not made any request to the respondents-Management to employ him even after he had recovered from his alleged illness. Still further, he continues to remain in occupation of the premises which had been initially allotted to his father inspite of the fact that he has not been discharging any duty for the last about 9 years. Moreover, during the course of arguments, learned counsel for the respondents has produced before us a photo copy of the statement made by the petitioner before the Labour Court. In his cross-examination the petitioner has admitted that he is a President of an organisation which is called "Khadi Gram Udyog Sangh." He had also admitted that he had conveyed to the respondents that he would report for duty as and when he gets award and that he had not made any request in this respect to the management. It is, thus, clear that after November 5, 1988 to December 14, 1994 when the petitioner's statement was recorded, he has not even made a request to the Management that he be allowed to join duty. It is in the background of this factual position that the contentions raised on behalf of the petitioner have to be considered.
4. It is true, as observed by their Lordships of the Supreme Court in Santosh Gupta's case (supra) that the expression "termination" in Section 2(oo) covers every act of "termination of service except those not expressly included in Section 25-F or not expressly provided for by other provisions...." Consequently, it is possible to contend that even a termination which is i brought about by the operation of a rule would fall within the ambit of Act. However, this position has been considered by Their Lordships of the Supreme Court in M. Venugopal v. The Divisional Manager Life Insurance Corporation of lndia, Machilipatnam, A, P. (1994-I-LLJ-597). In paragraph 9 Their Lordships have been pleased to observe as under:
"Before the introduction of clause (bb) in I Section 2(oo) there were only three exceptions so far termination of the service of the workman was concerned, which had been excluded from the ambit of retrenchment-(a) voluntary retirement; (b) retirement on reaching age of superannuation and (c) on ground of continued ill health. This Court from time to time, held that the definition of retrenchment being very wide and comprehensive in nature shall cover within its ambit termination of service in any manner and for any reason, otherwise than as a punishment inflicted by way of disciplinary action. The result was that even discharge simpliciter, was held to fall within the purview of the definition of retrenchment. (State Bank of India v. N. Sundara Money (1976-I-LLJ-478)(SC); Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72)(SC). Now with introduction of one more exception to Section 2(oo) under clause (bb) the Legislature has excluded from the purview of the retrenchment (i) termination of the services of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry; (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment no such stipulation is provided or prescribed, then such contract shall not be covered by clause (bb) of Section 2(oo). In the present case, the termination of services of the appellant is as a result of the contract of employment having been terminated under the stipulations specifically provided under Regulation 14 and the order of appointment of the appellant. In this background the non-compliance of the requirement of Section 25-F shall not vitiate or nullify the order of termination of the appellant."
5. In view of the above it is clear that if a contract of employment provides for termination of service in a particular manner, the non-compliance of the provisions of Section 25-F shall not nullify or vitiate the order. This is precisely the position in the present case. The petitioner had admittedly not attended to his duties for a period for more than six months. Yet the management had informed him that if he reports back on recovering from his alleged sickness, his case shall be considered. The fact, that he did not report for more than six years shows that in fact he is not interested in the job. In this situation, the suggestion on behalf of the Management that the petitioner was actually running a parallel business and was competing with it, cannot be said to be unworthy of credence or totally baseless. In fact, it appears that having got the house from the respondents, he is running his business and is not even paying any rent as alleged by the respondents.
6. These facts apart, the provisions of the Industrial law are enacted to help a willing worker and to ensure that the management does not exploit the helplessness of an employee. In the present case, the situation appears to be that the management needs to be protected from a recalcitrant workman like the petitioner. He has refused to attend to his duties because he has been transferred. This was done on the pretext of illness. When he was asked to produce medical certificate, he refused to do so. This is clearly indicative of the fact that the alleged sickness was only a cover to remain away from the job. Still further he utilised the residential premises to run his own business. In such a situation, we are not inclined to interfere with the findings of fact recorded by the learned Labour Court.
7. No other point has been raised.
8. Consequently, no ground of interference is made out. The writ petition is accordingly dismissed.
9. As a result of the dismissal of the writ petition, even the interim order passed on November 5,1996 regarding maintenance of status quo in respect of the position of the house, shall stand vacated.
10. There will be no order as to costs.