Bombay High Court
Managing Director, Panchganga ... vs Babasaheb Devgonda Patil And Anr. on 16 June, 1987
Equivalent citations: (1994)IIILLJ679BOM
JUDGMENT S.W. Puranik, J.
1. This petition relates to the. proceedings under Section 78 of the Bombay Industrial Relations Act, 1946 initiated by the respondent vide application (BIR) No. 23 of 1982 in the Labour Court at Kolhapur claiming reinstatement and back wages
2. Brief facts pertaining to these proceedings may be stated as follows:-
(i) The petitioner Shri Panchganga Sahakari Sakhar Karkhana Ltd. is a co-operative society registered under the Maharashtra Co-operative Societies Act. The said society deals with manufacture of sugar and establishment of schemes for providing water to sugarcane growers.
(ii) The respondent was in the employment of the petitioner society as an accountant and was a workman within the meaning of the Bombay Industrial Relations Act. In September 1978 he was deputed to work on one of the water supply schemes started by the society. Later on it transpired that the respondent had misappropriated certain funds from the water scheme to the extent of about Rs. 15,000/-. The petitioner society was, therefore, constrained to institute a dispute against the respondent. This dispute is bearing No. S.O.C. 598 of 1980 in the Co-operative Tribunal and is still pending.
(iii) It appears that from 1st July 1979 the respondent absented from duty without prior sanction of his leave. He remained continuously absent for a period of about three years till March 1982.
(iv) On 29th March 1982 the petitioner society having noticed his continuous absence from duty without leave struck off his name from roll and sent him an intimation that he has abandoned his service and has lost his lien over the service.
(v) Even though he received the intimation, about three months thereafter the respondent took the first step on 14th June 1982 by sending an approach notice to the petitioner society and thereafter on 28th June 1982 he initiated the proceedings under Section 78 of the Bombay Industrial Relations Act referred to above. In that he claimed reinstatement, back wages and continuation of service.
(vi) The society contested the said application of the respondent and took up a specific plea that the respondent had voluntarily abandoned service by remaining absent without leave for more than three years consecutively and hence was not entitled to claim reinstatement or any other relief. The society denied the fact that any approach notice was sent to them.
(vii) Upon recording evidence and hearing the parties the Labour Court dismissed the application of the respondent in its entirety. The Labour Court held that in the circumstances of the case the respondent had in fact abandoned his service and had, therefore, no claim whatsoever on his service with the Society.
(viii) The respondent then carried an appeal before the Industrial Court, Kolhapur. The Industrial Court, Kolhapur has given a detailed judgment confirming the finding of the Labour Court that the respondent had in fact abandoned his service. In the last para of the judgment, however, the Industrial Court has observed that even though the respondent had abandoned service voluntarily, yet removal of his name from the roster amounts to retrenchment inasmuch as the Society has not followed proper procedure of retrenchment, the respondent is entitled to reinstatement and continuity, of service but it did not grant the relief of back wages.
3. It is this judgment delivered by the Industrial Court, Kolhapur on 19th February 1985 in Appeal (IC) No. 15 of 1984 which is impugned by the petitioner Society in this petition. Shri Ajit P. Shah appearing for the petitioner society has criticised the impugned judgment on the ground that having held that there was abandonment of service on the part of the respondent, there was no question of holding that the society had retrenched the employee. In fact according to him no steps on the part of the society were needed when after waiting for over three years the name of the employee was removed from the roster simpliciter. He also relied upon the cases reported in Buckingham and Carnatic Co. Ltd. v. Venkatiah and Anr. and Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji and Ors. .
4. Shri Sakhare appearing for the respondent employee vehemently supported the order of the Industrial Court and also relied upon the case as well as L. Robert D'Souza v. The Executive Engineer, Southern Railway and Ors. AIR 1982 SC 854:1982-1 LLJ 330. He also took support from the decision of the Patna High Court in Desh Rai Sood and another v. Presiding Officer. I.T.and Anr. 1984 Lab. I C. 1651 as well as a decision of the Calcutta High Court reported in Naresh Chandra Das v. Seventh Industrial Tribunal and others 1982 Lab. I.C. 579.
5. The only question which arises for determination is whether the petitioner Society had by removal of the name of the respondent employee from the roster of the Industrial Court has relied mainly on the observations of the Supreme court in paragraph 14 of the judgment in , which reads as follows:-
"Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of Section 2(oo) of the Act."
"There is nothing to show that the provisions of Section 25F (a) and (b) were complied with by the management in this case. The provisions of Section 25F(a) the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent, is invalid."
6. This observation at the fag end of the judgment cannot be read in isolation particularly when the said observation refers to the fact that there is nothing to show that the provisions of Section 25F (a) and (b) were complied with by the management. Their Lordships were certainly referring to the facts of that particular case. Even otherwise in paragraph 13 of the judgment the standing order concerned with the case has been reproduced, which states as follows:-
"If any workman absents for more than eight consecutive days, his services shall be terminated and shall be treated having left the service without notice."
That is to say that by continuous absence of more than 8 days from service an employer is entitled to terminate service of a workman. Moreover the facts as narrated in paragraph 2 of the reported judgment onwards show that in the management of Delhi Cloth Mill the worker was recruited as labourer. He was subsequently promoted as a fitter and later on promoted as a Motion-Setter. But in 1954 there was reorganization in the management's establishment and the post of Motion-Setter was abolished. Ordinarily the workman would have been retrenched but under the terms of the settlement between the management and the representatives of the workmen no employee was retrenched. On the other hand the management agreed to offer work on any other suitable post and it appears that the workman Shambhu Nath was posted on different assignments on probation but was found unsuitable. Ultimately he was issued a letter by the management that they are offering him post of a fitter on the same pay as Motion-Setter and in case he agreed to the proposal, acceptance should reach the office of the management within two days of the receipt of that letter: otherwise it will be presumed that the proposal is not accepted by the workman and as a consequence he would be retrenched from the service.
7. Surprisingly at that time the workman was on leave and he received the letter two weeks thereafter. In the meantime the workman immediately represented to the management that he should be given a chance to show efficiency in his job and he hoped that the management would be kind enough to inform him early. Surprisingly instead of replying to the said letter the management issued him a letter as late as on August 19 of the next year inter alia informing him that his name had been automatically struck off from the rolls under the standing order for his continuous absence without intimation
8. It is in the light of these facts and circumstances that the Supreme Court held the act of the management to be mala fide, hasty and without following proper procedure inasmuch as by their earlier letter they had already threatened to retrench him. Moreover it was also not a case of voluntary abandonment of service by the workman.
9.The Supreme Court had occasion to deal with abandonment or relinquishment of service in the case of Buckingham and Carnatic Co. Ltd. v. Venkatiah and Anr. AIR 1964 SC 272. : 1963 (2) LLJ 688 Gajendragadkar, J. (as he then was) speaking for the Bench observed:
"The certified standing orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much if not more, as private contracts embodying similar terms and conditions. It is true that under common law the inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf.
10. Also in the case of National Engineering Industries Ltd. v. Hanuman, the Supreme Court has observed in paragraph 6 of the judgment:
".......but it seems to be clear to us that when the standing order provides that a workman will lose his lien on his appointment in case he does not join his duty within 8 days of the expiry of his leave, it obviously means that the services are automatically terminated on the happening of the contingency. We do not understand how a workman who has lost his lien on his appointment can continue in service thereafter. Where, therefore, a standing order provides that a workman would lose his lien on his appointment, if he does not join his duty within certain time after his leave expires, it can only mean that his service stands automatically terminated when the contingency happens."
11. In the present case before us the petitioner Society had taken the specific defence that right from 1st July 1979 till March 1982 the respondent had neither proceeded on leave nor had he applied for leave but simply absented himself from duty continuously. It is in these circumstances that the petitioner society concluded that the respondent had abandoned his service and voluntarily relinquished his job, as during the long period of absence the respondent had not even taken care to explain his absence or to ask for leave and even after his name was removed from the rolls for his continuous long absence and though the intimation was given to him, yet in the next three months, he did not take steps even to approach the management. The intimation was given by the petitioner on 23-8-1982, whereas the approach notice was given by the respondent on 14-6-1982. In these circumstances the finding of fact arrived at by both the Courts below that the respondent had abandoned his service voluntarily must be upheld and needs no interference. On the other hand the finding of the Industrial Court that this removal amounts to retrenchment cannot be accepted in view of the distinction stated above from the ratio of the judgment in Delhi Cloth etc. K Shambhu etc. . The other rulings cited by Shri Sakhare for the respondent are of no assistance to us because in all of them the dictum laid down in has been followed in their respective contexts and circumstances. I have, no doubt in my mind that in the present case the respondent had abandoned and relinquished his service and his removal from the roster was a mere formality. It is pertinent to note that the respondent had not taken up any pleading of ulterior motive or bad faith or mala fides on the part of the management. The only stand taken by him was that he was under the impression that he would not be taken in service until the dispute filed against is decided. Both the Courts have found that this stand is not only untenable but also not at all proved by the respondent. His other stand is that from 1-1-1979 for a period of two months he was going to the management's office but he was not allowed to join duty. Even this stand has been negatived on facts concurrently held by both the Courts below. Hence nothing survives in the dispute initiated by the respondent and he is not entitled to reinstatement much less continuity of services
12. The petition therefore, filed by the petitioner society is allowed. The impugned order of the Industrial Court is quashed and set aside and that passed by the Labour Court is confirmed. There shall be no order as to costs.
13. The other Writ Petition No. 2969 of 1985 is filed by the workman as he was aggrieved by the order of the Industrial court refusing him back wages. However, in view of the decision given in Writ Petition No. 1399 of 1985 that the respondent employee is not entitled to reinstatement or continuity of service, Writ Petition No. 2969 of 1985 filed by the respondent is not sustainable and the same is therefore dismissed with no order as to costs.