Madras High Court
Madura Coats Ltd. vs Presiding Officer, Labour Court And ... on 21 February, 2001
Equivalent citations: (2001)IIILLJ1194MAD
JUDGMENT E. Padmanabhan, J.
1. In W.P. No. 20534, the petitioner the Management of Madura Coats, Ltd., prays for the issue of a writ of certiorari to call for the records and to quash the common award, dated June 7, 1993, in I.D. No. 610 of 1990 on the file of the first respondent, Labour Court, Tirunelveli, in so far as it relates to P. Muthuvinayagam.
2. In W.P. No. 20535 of 1993, the petitioner, the very same management prays for the issue of a writ of certiorari to call for the records and quash the common award dated June 7, 1993 made in I.D. No. 610 of 1990 on the file of the said Labour Court in so far as it relates to C. Dhanapandian.
3. Heard Sri John for Ramasubramaniam Associates, learned counsel appearing for the petitioners and Ms. Rita Chandrasekaran for Iyer and Doha, learned counsel appearing for the second respondent in both the petitions.
4. As these two writ petitions arise out of the common award of the first respondent, Labour Court, the writ petitions were taken up together and disposed of by a common order. It would be sufficient to refer to the facts in one of the writ petitions as the facts leading to the award passed by the Labour Court are identical in all respects.
5. The second respondent was an employee of the petitioner-mill. The second respondent without applying for leave and without prior permission remained absent from June 17, 1982, which absence being a violation of Standing Order 20(F), the petitioner-management framed charges by its charge-memo, dated July 27, 1982. The workman was called upon to state his objections within 48 hours by a chargememo, dated July 27, 1982. The workman was also informed that he has to attend the enquiry on July 31, 1982 at 10.00 A.M. in the mill premises at Tuticorin before the enquiry officer with witnesses. The workman was also put on notice that in event of his failing to attend the enquiry, the proceedings will be continued ex parte. The workman did not appear for the enquiry, neither they have sent an explanation nor they have sought for adjournment or postponement of the enquiry. On July 31, 1982 the enquiry officer proceeded with the enquiry as he was satisfied that the workman did not submit his explanation to the charge-memo besides notice published in the tamil daily, dated July 28, 1982.
6. The enquiry was proceeded ex parte. Before the enquiry officer, one Rajasigamani, mill assistant was examined as M. W. 1 and M. Kasi, Administrative Office Assistant as M. W. 2. Before the enquiry officer the management marked Exhibits Ml to M16. The enquiry officer submitted his report, dated August 3, 1982, finding the workman guilty of the charge. The mill management by proceedings, dated August 4, 1982, after considering the enquiry report and while concurring with the report as well as on an independent assessment of the evidence made available before the enquiry officer concluded that the workman had absented himself without any reasonable cause and the absence for more than the stipulated period being a violation of Standing Order 20(F) proposed to impose the punishment of dismissal from service and called upon the workman by its proceedings, dated August 4, 1982, to state his objections, if any.
7. The said show-cause notice returned unserved as obviously the workman had left his normal place of residence. Thereafter by proceedings, dated August 21, 1982, the mill management confirmed its proposed penalty of dismissal on the worker with effect from August 4, 1982.
8. After a lapse of two months on October 29, 1982, the workman addressed the management complaining that when he reported for the day shift on October 25, 1982 with a written request to permit him to report he had not been permitted to work and therefore he has sent a request by registered post on October 29, 1982.
9. Thereafter complaining that the workman has been denied employment illegally, they raised an industrial dispute and the same has been referred to the first respondent-Labour Court in I.D. No. 610 of 1991. The said I.D. No. 610 of 1991 was referred to by the State Government by G.O., dated October 30, 1990 and the dispute that has been referred for adjudication reads thus:
"(1) Whether the non-employment of Sri M. Jayaprakash, Sri G. Solomon, Sri M. Chandrasekaran, Sri P. Muthuvinayagam, Sri C. Dhanapandian, is justified, if not to what relief they would be entitled?
(2) To compute the relief, if any, whether in terms of money if it could be so computed?"
10. The five workmen filed a common claim statement while the management had filed a detailed counter-statement and prayed that the Labour Court may hold that the dismissal of the workman as fair and proper in the circumstances of the case. Before the first respondent-Labour Court, no oral evidence had been let in by either side. The workers marked Exhibits W1 to W18 while on the management side Exhibits M1 to M133 were marked. Exhibit M133 is the Standing Order. The first respondent-Labour Court framed the following three points for consideration:
"(1) Whether the enquiry was conducted against the claimants in accordance with the principles of natural justice and law?
(2) Whether the punishment of dismissal imposed against the workmen is fair?
(3) Whether the workmen are entitled to the claim made by them ?"
11. The Labour Court by its common award, dated June 7, 1993, ultimately set aside the dismissal and directed the reinstatement of the workmen with 50 per cent back wages for the period January 1, 1986 to October 31, 1990 and payment of full salary from November 1, 1990 till date of reinstatement. The Labour Court also held that the workmen are not entitled to salary prior to January 1, 1986.
12. Being aggrieved by the said award, the management filed W.P. Nos. 20531 to 20535 of 1993. Excepting the present two writ petitions, in respect of the other three writ petitions, the workmen and the management settled the dispute among themselves by the management paying a lump sum payment in full settlement of all claims and the award of the Labour Court was set aside in respect of those three workmen.
13. These two petitions alone remain to be disposed of. At the request of the counsel for the management as well as the respondents, these writ petitions were adjourned on three different occasions to ascertain whether the parties are willing to settle the dispute on the same terms and conditions as was done in the case of other three workmen. Ms. Rita Chandrasekaran, learned counsel appearing for the workmen pleaded and pointed out that the earlier three petitions have been disposed of long time back and therefore the workmen are not willing to get the same amount of compensation as paid to them in the present writ petitions. This Court further suggested that the writ petitioner- management may pay the same amount with interest from the date of payment to the other three workmen till the date of payment so that the workmen would be compensated for the belated settlement. The parties took time and the counsel for the management after getting instructions readily agreed to the suggestion while the counsel for the workmen on instructions reported that the workmen are not willing to adopt such a course. Hence further arguments were advanced on merits in these two writ petitions. This Court will not be justified in taking into consideration of the same and the matter requires to be considered on merits of the case.
14. The following points arise for consideration in these two writ petitions:
"(1) Whether the workmen unauthorisedly absented themselves?
(2) Whether the attitude of the management in initiating disciplinary proceedings is unfair?
(3) Whether there is any illegality or violation of principles of natural justice in the conduct of the disciplinary proceedings?
(4) Whether the punishment of dismissal is just and warranted on the facts of this case?
(5) Whether the Labour Court is justified in interfering with the quantum of punishment under Section 11-A of the Industrial Disputes Act?
(6) To what relief the petitioners are entitled to?"
15. Certain undisputed facts are required to be set out for appreciation of facts. The workman, Muthuvinayagam joined the services of the petitioner-Mills on January 2, 1965 as a learner and he was confirmed as a substitute on October 1, 1969. This workman was subsequently posted as willow machine tenter helper from December 1, 1972. At the time of dismissal, the workman was working as a roto winder and his last drawn salary was Rs. 743.80.
16. The workman, Sri C. Dhanapandian, was recruited as a learner on October 23, 1973 and he was confirmed as a substitute on June 1, 1975. This workman was posted as a permanent Spinner from January 1, 1979 and on the date of his dismissal he was drawing a total salary of Rs. 890.76. Excepting the difference in dates and the said service particulars there is no difference with respect to the proceedings initiated against two workmen in other respects.
17. In all five workmen, namely, Sri M. Jayaprakash, Sri G. Solomon, Sri M. Chandrasekaran, Sri P. Muthuvinayagam and Sri C. Dhanapandian continuously absented themselves from June 17, 1982. Belatedly the workmen have sent a telegram requesting leave for three days. The origin of the telegram is not known and no reason had been assigned by the workmen for grant of leave. The management did not sanction the leave. By letter dated June 17, 1982, the workmen were informed that leave has not been granted and that they should report for duty immediately. On June 22, 1982 the management received another telegram from Tirunelveli seeking leave for ten days. The management declined to sanction the leave as no reason had been assigned and by letter dated July 3, 1982 all the workmen were advised to report for duty within two days from the date of receipt of the said letter, besides they were put on notice that it would be deemed that the workmen have voluntarily left the services.
18. The said letters addressed to the five workmen, though forwarded to their respective permanent address, they have been returned with the endorsement "house remains locked". The earlier letter dated June 22, 1982, sent under certificate of posting also returned back to the petitioner-mills with endorsement "House Locked". On July 4, 1982 the above five workmen through an advocate, Sri Jawaharlal, from Tirunelveli, wrote a letter, dated July 4, 1982, stating that the said workmen are unwell and requested for grant of casual leave for fifteen days from July 4, 1982. The reason set out in the said letter being illness to the workmen.
19. The reply was sent by the management on July 9, 1982 explaining the earlier conduct of unauthorised absence on the part of the workmen and that the certificate from the ESI Dispensary should be secured for grant of medical leave in support of the leave application. Since June 17, 1982 all the five workmen absented themselves and the workmen were advised to report for duty before the close of seven days from the receipt of the said letter failing which their services would be terminated treating them as having left the services of the company on their own accord. The said five workmen did not report for work.
20. Thereafter a chargesheet, dated July 27, 1982, was sent to all the five workmen calling upon them to submit their explanation and also to appear for an enquiry on July 31, 1982. The chargememo was sent by registered post with acknowledgment due to the last known address of the five workmen. Since the earlier letter forwarded returned undelivered, the writ-petitioner/management also caused publication of their chargememo in the Tamil Daily "Dina Malar" on July 28, 1982. The five workmen did not turn up for the enquiry on the date and time fixed for the enquiry.
21. Before the enquiry officer, the management examined two witnesses and marked 16 documents. The enquiry officer submitted his findings on August 3, 1982 holding that the charges have been substantiated against the said workmen. A second show-cause notice, dated August 4, 1982, was sent by registered post to the five workmen to the last known address and the same also returned with the endorsement "Not found during delivery time". Thereafter the management confirmed the proposed punishment of dismissal on August 21, 1982 and subsequently order of dismissal was passed on August 23, 1982 dismissing all the five workmen. The order of dismissal was also sent by registered post to all the five workmen and the dismissal also was published in the Tamil Daily "Dina Malar" on August 24, 1982.
22. Between June 17, 1982 and October 29, 1982 the whereabouts of the five workmen were not known and they have absented themselves on and from June 17, 1982 and till the order of dismissal came to be passed. Only on November 11, 1982, the workmen presented a petition for permission to resume duty and they were informed about the order of dismissal passed against each one of them. The above facts are not in dispute.
23. Per contra, the workmen mainly pleaded that they were implicated in a murder case, that the police have been searching for them in connection with a murder case, that the workmen had to be away from their head quarters, that the criminal Court granted bail imposing conditions and after relaxation of the condition they have reported for duty on October 29, 1982. Concedingly, no leave letter had been sent by the workmen nor the workmen have reported for duty within the period of seven days as provided under the Standing Order. It was the further case of the workmen that enquiry was not conducted in accordance with the principles of natural justice and that the order of dismissal is unfair and highly excessive and disproportionate.
24. It is pertinent to add that before the Labour Court, the employer has also requested that in case if the Labour Court finds that the enquiry proceedings is vitiated or not in accordance with principles of natural justice, the management be permitted to let in evidence before the Labour Court to prove the charges. Such a procedure had not been resorted to by the Labour Court despite such a plea.
25. Before the Labour Court no oral evidence had been let in by either side, only documents were marked. It is the case of the workmen that as the police were searching all the five workmen they could not send a telegram neither they could send a letter nor they could intimate their address to the management. It is further admitted by the workmen that they have not intimated their address during the relevant period for communication or place where they stayed during the relevant period and the family members also left their respective house apprehending police reprehension. Only on July 4, 1982 the workmen have requested for 15 days leave without assigning any reason and the same had been rejected by the management. This is also not in dispute.
26. It is the contention of the workmen that management knew about the murder case registered against the workmen and despite the same, the management had initiated proceedings and had dismissed them which is highly arbitrary. The workmen were dismissed from service with effect from August 4, 1982. It is admitted by the workmen that they surrendered themselves before the Judicial Magistrate, Coimbatore on July 19, 1982. Till August 28, 1982 the workmen were in judicial custody and only on August 21, 1982 the workmen were enlarged on bail subject to the condition that they should report before the Tenkasi Police Station twice a day. Till October 21, 1982 the workmen were at Tenkasi and reporting to police station daily. Only on October 25, 1982 after relaxation of bail conditions, the workmen returned to Tuticorin and reported for duty. It is the claim that the workmen were not permitted to join duty and they were intimated of the dismissal by the management. The above dates are also not in dispute. It is clear that the workmen absented themselves unauthorisedly without submitting a leave application at the first instance and thereafter sent letters without setting out the cause for leave and there is no factual dispute in this respect and the workmen have not disputed the said facts.
27. What is being contended by the workmen being that they were prevented from attending their work and it is a sufficient cause for their absence and the management which was aware of the criminal proceedings should have awaited the release of the workmen on bail and only thereafter it should have initiated the proceedings. It was further contended by the workmen that not only they have failed to reside in their regular place of residence, but they had to move from place to place and ultimately they have surrendered before Judicial Magistrate at Coimbatore. It is also the version of the workmen that their family members were away from their usual place of residence and there was none to receive any communication from the management.
28. In the light of the said facts, the workmen sought to contend that principles of natural justice have been violated and that without affixture of notice on the last known address there cannot be a valid service of notice and therefore the disciplinary proceedings initiated and concluded are vitiated. It is also admitted by the workmen that they have sent two telegrams from two different places but without assigning any reason and that on their behalf their advocate addressed the management for 15 days medical leave, it is admitted that the workmen have not produced certificate prescribed from the ESI Dispensary along with the leave application. Admittedly on and after June 17, 1982 after six continuous days the workmen absented themselves. After several days a telegram had been sent seeking leave for three days without any reason which request had been rejected rightly for want of reason. The rejection of the leave has been intimated to the permanent address of the workmen then and there. On receipt of the second telegram the management once again rejected the leave requested. So also the subsequent request sent through their advocate, the request of the workmen had been turned down and it was also intimated. Only on July 4, 1982 the advocate of the workmen had sent a letter for grant of fifteen days leave. Even here the workmen did not also furnish the prescribed medical certificate from the ESI Dispensary and this request was made by their counsel. These are all admitted facts (sic) and there is no dispute.
29. It is also admitted that charge memorandum had been sent by post and it was also published in the Tamil daily. An enquiry notice was also sent to the permanent address of the workmen, but they have been returned subsequently. The enquiry notice was also published in the tamil daily. The workmen did not attend the enquiry nor they have sought for an adjournment by stating that they have been detained or they are in custody or they are away from Tuticorin for reasons beyond their control. Even assuming that the management was aware that the workmen have been implicated in a criminal case that would not justify the unauthorised absence as the workmen owe a duty to apply for leave and they have to report for duty or furnish valid reasons in support of their leave application.
30. The workmen were absconding for reasons created by themselves and it is not as if the management is the root cause for such an incident or contingency. When the workmen were away either at Tiruchendur or at Coimbatore, they could have written to the management setting out the details and reasons which prevented them from reporting for duty. But on the other hand they have chosen to ignore their obligation or responsibility as workmen. Two telegrams have been received, but the telegrams are belated and they did not contain any reason. Even the leave application submitted through the advocate for the workmen merely sought for medical leave for fifteen days without the prescribed certificate from the ESI Dispensary as the workmen employed in the mill are covered by ESI Act and medical leave application should be accompanied by the requisite medical certificate.
31. The Labour Court below ignoring the said admitted facts, yet proceeded as if there is justification for the workmen to absent themselves or abscond themselves or they could report themselves at any time or date of their choice. The Labour Court also proceeded as if there is no valid service of notice. This approach of the Labour Court cannot be sustained. The management had sent a notice and also published a notice in the Tamil daily besides affixing the notice on the office notice board. Merely because the letters have been returned with the postal endorsement "Door closed", it cannot be stated that the service is not sufficient or insufficient or there is no service at all in the eye of law. It is not as if affixture is a must. When the workmen abscond themselves and do not intimate their present address the management is not expected to search for them or go in search of them and serve notice. It would be sufficient if the management serve notice at the usual place of residence of the workmen. The letters have been returned as the workmen were not available and there was a publication in the Tamil daily also with respect to the chargememo and calling upon the workmen to appear for the domestic enquiry. The approach of the Labour Court that the management should have waited till the service of notice cannot be sustained as even according to the workmen they were away from their place for more than three months and they have not intimated their address to which communication had to be sent by the management during the said period. It is not as if the management should wait indefinitely.
32. The management had taken all steps to serve the chargememo as well as the show-cause notice, but neither the workmen nor their family members have chosen to receive the same. Merely because the management had proceeded with the enquiry even assuming it was aware of the criminal case registered against the workmen, it cannot be held that the management had deliberately conducted the proceedings ex parte without service of notice.
33. The very publication of notice in the Tamil daily having circulation in the locality is also one of the valid methods of service of notice and in this case apart from the said publication the management had also attempted to serve the workmen concerned at their usual place of residence, but they could not be served personally as the workmen have made themselves scarce. There is no duty cast upon the management to hunt for the workmen or go behind them, or wait for their return and serve the notice. If such a view is taken then there could be no progress at all in the disciplinary proceedings as the workmen would be placed in an advantageous position and they could defeat the proceedings that may be initiated by the management.
34. The management had taken every effort to serve notice on the workmen at all stages and it is not as if the management had not taken steps to serve the workmen. It is not as if the management has to first send a notice by post and thereafter only can cause publication or take up the next step. In the present case two opportunities were afforded by sending notice, but the workmen have evaded to receive the notice by being away from their normal place of residence. Merely because the workmen had suggested the reason for their being away or as the police have been searching for them, the management cannot be fastened with a further onerous duty of searching for the workmen when the workmen have not chosen to leave their address for correspondence nor even furnished them in the telegrams sent.
35. It is not necessary that service of notice should be step by step as has been viewed by the Labour Court. When the workmen were not available in their regular place of residence and when all the correspondence sent to their regular address have been returned, there is no illegality in the management publishing the notice in the daily. It is not as if the workmen were available in their usual place of residence and the management had also published notice in the Tamil daily at every stage. On July 31, 1982 an ex-parte enquiry was conducted and after examining the witnesses and marking evidence the enquiry officer submitted his report on August 3, 1982 holding that the charges have been substantiated.
36. The view of the Labour Court that the management had not taken appropriate action or the management had failed to take a balanced view is a mis-direction. A show-cause notice also was sent to the workmen and the same had also been published in the newspapers as the workmen were not available in their usual place of residence. When the workmen are not available or absconding or failed to furnish an address for communication and there is none to receive the notice, there is every justification for the management to publish a notice in the Tamil daily having circulation in the locality, besides their attempt to serve notice by other modes. In the circumstances the conclusion of the Labour Court that the domestic enquiry proceedings were not conducted in accordance with the principles of natural justice cannot be sustained and the said finding of the Labour Court is vitiated by misdirection and error apparent on the face of record.
37. It was next contended that Paras 21(3) and 20(F) of the Standing Orders provide that when the workman habitually absents himself continuously for six days, as provided under the Standing Orders, nothing further, survives for the management to prove it and it is misconduct which on the admission of the workmen stands proved. In the present case as already pointed out for more than six or seven days at the first instance and later for several weeks they have absented themselves and they are guilty of misconduct which falls under Section 20(F) of the Standing Orders. The interpretation placed on the Standing Order by the Labour Court also cannot be sustained.
38. Merely because according to the workmen they have a reason of their own for their absence, it cannot be a ground to interfere with the domestic enquiry proceedings and set aside the order of dismissal passed by the management as the workman is guilty of misconduct even according to his own version. It may be that the workmen may have been absconding or behind bars for more than a month, but yet have not not intimated the management of their absence or whereabouts and they did not ask for leave or leave of absence. The approach of the Labour Court in this respect that the management should have waited till the workmen returned back after being enlarged on bail cannot be a valid reason at all or ground to hold that the domestic enquiry proceedings are vitiated.
39. The Labour Court proceeded as if the management should have waited till the workmen report which event had taken place after a few months in the present case and only thereafter the management if at all could initiate action in the view of the Labour Court. In my considered view this cannot be sustained in law as it would amount to putting premium over the misconduct of persistent absence on the part of the workmen.
40. The workmen did not care at all for the employment and they were on their own and it is not as if they were prevented from even intimating their place of address, their address for communication or they were prevented by just reason or cause. The rigour of the Standing Order cannot be watered down merely because the workmen were being implicated in a criminal case and they have been moving from one place to another to avoid arrest or they were behind bars and later released on bail subject to certain conditions. The reason assigned for not reporting for duty within the stipulated period by the workmen on the facts is not an extenuating circumstance nor it is a justifiable reason as the alleged criminal incident had not taken place inside the factory premises nor in the course of employment nor it was connected with their employment and assuming that the management was aware of the criminal proceedings, had again waited till the workmen reported at their sweet will after their being enlarged on bail.
41. If such a view is taken when a default bail is granted only then the concerned accused person may be able to report and till then the management cannot initiate action, which approach cannot be sustained, nor it could be appreciated. What is required is that the management should follow the procedure prescribed under the Standing Order and materials have been placed before the Labour Court to substantiate that the management had conducted the proceedings after service of notice.
42. The service of notice, in the present case has to be taken as a valid service as the petitioners were expected to reside in their place of residence and whenever they change their place of residence, even temporarily they are expected to intimate their present address so that the management could communicate the proceedings. Having failed to intimate the address and having failed to respond to the charge-memo as well as hearing notice, it is not open to the workmen to contend that their absence is not liable to be proceeded or that the management should await till the workmen report on their own, which event may occur or may not occur even for a period of a few months.
43. In the present case, the conclusion of the Labour Court that the enquiry is vitiated cannot be sustained at all. The legal effect of service of notice as per the Standing Orders cannot be ignored and there is no illegality nor there is violation of principles of natural justice in the proceedings taken by the management. Further the workmen have to blame themselves for the situation in which they have placed themselves.
44. As regards the quantum of punishment, the workmen have absented themselves for several months and they did not apply muchless they have submitted valid leave applications assigning reasons and the letter sent through their advocate also was not accompanied with the prescribed medical certificate from the ESI Dispensary for grant of medical leave. The rigour of Standing Order cannot be watered down by making such an approach or by misplaced sympathy towards workman who have involved themselves in a criminal case.
45. Hence while setting aside the findings of the Labour Court, this Court holds that the management had conducted the proceedings in conformity with the Standing Orders and in conformity with the principles of natural justice. The findings to the contra of the Labour Court are set aside.
46. Taking up the next point for consideration it has to be pointed out that the Standing Orders provide that if the workmen absent himself for a continuous period of six days, the consequence follows automatically. In this respect the recent pronouncement of the Apex Court in Scooters India Ltd., v. M. Mohammad Yaqub and Anr. reported in 2000-I-LLJ-7 is relied upon by the management. In the said case, the Apex Court while holding that there cannot be an automatic termination of service of a workman on the basis of Standing Order on ground of unauthorised overstaying leave, what is required being compliance of principles of natural justice. In the said case the Apex Court held thus, at page 8 of LLJ:
"9. On the other hand Sri Chinnasamy has relied upon the case of Uptron India Ltd. v. Shammi Bhan and Anr., . In this case it was held that such a Standing Order conferred a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It was that the discretion has to be based on an objective consideration of all circumstances and material which may be available on record. It was held that questions which would naturally arise are what circumstances compelled the employee to proceed on leave, why he overstayed leave, was there any just and reasonable cause for overstaying leave, whether he gave any further application for extension of leave, whether any medical certificate was sent if he had in the meantime fallen ill. It was held that such questions could only be answered by the management provided it was inherent in the provision that the employee against whom action was proposed to be taken on the basis of such a provision was given an opportunity of hearing. It was held that principles of natural justice had to be read into such a clause and the principles of natural justice had to be complied with. It was held that the employee had to be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. It was held that a Standing Order which provided for automatic termination of service of a permanent employee would be bad if it did not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically. It must be mentioned that the authority in Scooters India v. Vijay E.V. Eldred was cited before this Court. In respect of that case it was held as follows at page 9 of LLJ:
"Learned counsel for the petitioner has placed strong reliance upon a decision of this Court in Scooters India v. Vijay E.V. Eldred (supra) support of his contention that any stipulation for automatic termination of services made in the Standing Orders could not have been declared to be invalid. We have been referred to a stray sentence in that judgment which is to the following effect":
'It is also extraordinary for the High Court to have held Clause 9.3.12 of the Standing Orders as invalid.' This sentence in the judgment cannot be read in isolation and we must refer to the subsequent sentences which run as under:
'Learned counsel for the respondent rightly made no attempt to support this part of the High Court's Order. In view of the fact that we are setting aside the High Court's judgment, we need not deal with this aspect in detail.' In view of this observation, the question whether the stipulation for automatic termination of services for overstaying the leave would be legally bad or not, was not decided by this Court in the judgment relied upon by Sri Manoj Swarup. In that judgment the grounds on which the interference was made were different. The judgment of the High Court was set aside on the ground that it could not decide the disputed question of fact in a writ petition and the matter should have been better left to be decided by the Industrial Tribunal. Further, the High Court was approached after more than six years of the date on which the cause of action had arisen without there being any cogent explanation for the delay. Sri Manoj Swarup contended that it was conceded by the counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that:
'Learned counsel for the respondent rightly made no attempt to support this part of the High Court's Order.' This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by counsel is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Sri Manoj Swarup on this judgment, therefore, is wholly out of place.
"12. The question which then arises is whether the principles of natural justice were followed in this case. As has been set out herein above Sri Swarup had submitted that the workman had been given an opportunity to join the duty and that he did not join duty even though repeatedly called upon to do so. It is contended that principles of natural justice have been complied with in this case. However, the material on record indicates otherwise. The Labour Court in its award sets out and accepts the respondent's case that he had not been allowed to join duty.
47. In Uptron India Ltd. v. Shammi Bhan and Anr. (supra) while considering Order their Lordships of the Supreme Court laid down thus, in Para 20 at page 963:
"There is another angle of looking at the problem. Clause 17(g) which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to automatic termination." This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion cannot be exercised or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave, whether he gave any further application for extension of leave ; whether any medical certificate was sent if he had, in the meantime, fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provisions itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave."
48. In the light of the abovesaid two pronouncements, on the facts of this case, it is not as if the management had terminated the services of the workmen without holding an inquiry for unauthorised absence in terms of the Standing Order. The management had followed the procedure prescribed as well as followed the principles of natural justice and only thereafter it imposed the punishment of dismissal. It may be that the proceedings may be ex-parte, but on that score, it cannot be said that the procedure adopted is in violation of principles of natural justice. Ex-parte procedure is also provided for and it is a valid procedure and such an ex-parte proceeding the management had been compelled to resort by the very conduct of the workmen. Therefore, while setting aside the findings of the Labour Court, this Court holds that the management had followed the procedure prescribed and while following the principles of natural justice, imposed the punishment of dismissal.
49. Taking up the quantum of punishment, the counsel for the workmen contended that the dismissal of the workmen for unauthorised absence for a short period of few days at the first instance followed with the absence of few months is shocking and it has been rightly interfered by the Labour Court. This contention of the workmen also cannot be sustained as it is not an absence for a few days, but it is an unauthorised absence for a continuous period exceeding twelve weeks and there was no communication at all by workmen till the workmen reported after a lapse and at the end of five months.
50. If the workman absents himself for five months without intimation it could be normally inferred that the workman is not interested in continuing in the employment unless he had chosen to intimate the management that he is prevented by such and such cause which is a sufficient reason, which may satisfy the management and only in such case or explanation the management may accept depending upon the facts of the case. In that event only, there is valid reason for interference.
51. In the present case, the workmen have totally ignored their responsibility and duty and ignored the very existence of the management and employment and have kept themselves away for few months. Their sending two telegrams without address and letter through their advocate without medical certificate had been rightly rejected for valid reasons and the reason which prevailed with or assigned by the management cannot be held to be capricious nor it is arbitrary.
52. One of the workers Muthuvinayagam, had put in few years of service while the other worker Dhanapandian had just put in less than three years of service as a permanent employee. Therefore on the facts of the case it cannot be said that the order of dismissal is shocking or arbitrary and it deserves to be interfered with under Section 11-A by the Labour Court. None of the aspects or criteria laid down in this respect had been followed by the Labour Court, while interfering with the quantum of punishment.
53. The reinstatement order in this case is uncalled for and the Labour Court instead of reinstatement should have awarded a lumpsum payment to the workmen. The workmen were receiving just around Rs. 800 per month. Taking into consideration of the short period of service rendered by each one of them instead of reinstatement, the Labour Court should have directed the management to pay a lump sum compensation as the workmen have obviously no regard for discipline as well as no regard for their employment and have discarded to report for duty for several months.
54. It may be that the other workmen have accepted lumpsum payment and walked away. But on that score this Court would not be justified in imposing the same terms on these two workmen as well. These two workmen have also secured directions under Section 17-B and for the past several years they have been receiving the last drawn wages in terms of the direction issued under Section 17-B of the Industrial Disputes Act.
55. Taking into consideration the totality of the circumstances, while setting aside the award passed by the Labour Court, as it is vitiated by illegalities, error apparent on the face of record and misdirections and in the light of the above pronouncement of the Supreme Court referred to above, this Court sets aside the award of the Labour Court directing reinstatement with 50 per cent back wages, instead direct the management to pay a lump sum compensation of Rs. 1,60,000 to each workman in lieu of reinstatement, which would meet the ends of justice.
56. Both the writ petitions are ordered in the above terms. The parties shall bear their respective costs.