Collector Mishra vs Management Of Bokaro Steel Plant

Heard counsel for the parties.

The present writ petition has been filed for quashing the Award dated 13.03.2004 passed in Reference Case No. 09 of 1999 by the Presiding Officer, Labour Court, Bokaro Steel City, whereby the reference has been answered against the workman. The terms of reference is as follows:

"Whether the dismissal of Sri Kalaktar Mishra, Khalasi, Staff No. 275760 R.C.-Lane, workman of Bokaro Steel Plant from 7.6.85 is justified? If not, what relief the workman is entitled to?"

It appears that the workman has proceeded on leave from 11.09.1984 to 12.10.1984 on the ground of illness of his mother. Subsequently, he sent information by a letter dated 19.10.1984 that he would not be able to join the service for further three months due to his mother's death. This request has been rejected by the management and has directed him to join the duty immediately by 13.10.1984. Again by the notice dated 29.10.1984 he was asked to report for duty on or before 12.04.1985, failing which it will be presumed that he has left his service. In spite of above notice, the petitioner-workman has not joined the duty, and accordingly, in terms of Clause 20(xi) of Certified Standing Order, his name has been struck off from the roll of the company w.e.f. 07.06.1985.

Clause 20(xi) of Certified Standing Order reads as under:

"If a workman remains absent without permission or overstays the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment and his service will automatically stand terminated unless he returns within 8 days of the expiry of the leave or the date from which he absented and explains to the satisfaction of the management his absence without permission or inability to return before the expiry of the leave, where, however, the period of such absence exceeds 15 days, the workman shall be presumed to have left the service of the company of his own accord without notice."

Striking off the name of the petitioner from the roll of the company w.e.f. 07.06.1985, has been challenged by raising Industrial Dispute in the year 1995, referred vide notification dated 03.08.1998 being Reference Case No. 09 of 1999. The said reference has been answered against the workman vide Award dated 13.03.2004 and this has been impugned in the present writ petition.

Counsel for the petitioner has submitted that since striking off the name of the petitioner from the roll of the company amounts to retrenchment and this retrenchment is in violation of Section 25-F of the Industrial Disputes Act, 1947 and as such, the Labour Court has committed error by not allowing the reference in favour of the workman.

Per contra, counsel for the respondent has relied upon the judgment of the Apex Court in the case of Agra Electric Supply Co. Ltd. Vs. Sri Alladdin & Ors. reported in 1969 (2) SCC 598. Para-9 is quoted hereinbelow:-

"9. Counsel for the workmen, however, drew our attention to the award in Ref. 91 of 1964 under Section 4(k) of the U.P. Industrial Disputes Act, 1947. That reference, no doubt, was between the appellant Company and its workmen and the question decided there was whether the company was right in compulsorily retiring the six workmen there concerned under these very standing orders although they were employed before they were certified and came into force. The Labour Court, relying on Workmen of Kettlewell Bullen & Co. Ltd. v. Kettlewell Bullen & Co. Ltd. which in turn had relied on Guest, Keen, Williams' case, held that as Order 32 of these Standing Orders could not be applied to those previously appointed and that, therefore, the company's action in retiring those workman was not justified."

Further, counsel for the respondent has relied upon the judgment of the Apex Court in the case of Viveka Nand Sethi Vs. Chairman, J & K Bank Ltd. & Ors. reported in 2005 (5) SCC 337

Paras 15 and 16 are quoted hereinbelow:-

"15. The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either: (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to hereinbefore, that the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence satisfying the management that he has not taken up any other employment or avocation and that he had no intention of not joining his duties.

In the aforementioned fact situation we do not see any reason as to why the Bank could not arrive at a satisfaction that the workman had no intention to join his duties. It is interesting to note that though the said order was passed on 17-5-1984, a representation to the Bank was made by the workman to reconsider the said decision after a period of 3 years and 2 months by a letter dated 31-7-1987."

Counsel for the respondent has further relied upon the judgment of the Apex Court in the case of Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association & Anr. Reported in 2000 (5) SCC 65. Paras 18 and 19 are quoted hereinbelow:-

"18. The Bank has followed the requirements of clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement.

This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank is concerned. The conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief the High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the award."

Argument has been advanced that the principle of natural justice is inbuilt in the Certified Standing Order i.e. Clause 20(xi) and as such petitioner-workman is not entitled for relief. Further the name of the workman has been struck off from the roll on 07.06.1985 while the Industrial Dispute has been raised in the 1995 and further the Award is dated 13.03.2004, while the writ petition has been filed in the year 2013 and thus, on the ground of delay and laches also, the present writ petition is not maintainable.

From the record, it appears that the petitioner has been appointed on 24.07.1973. He proceeded on leave for the period October, 1984 to December, 1984. Thereafter, he has prayed for extension of leave. He has made an application for extension of leave for further three months. Twice he has been given notice for joining the duty, but in spite of the notice, he has not joined duty. Applying the mandate of Clause 20(xi) of the Certified Standing Order, the name of the workman has been struck off from the roll of company w.e.f. 07.06.1985.

The similar Standing Order has been considered by Apex Court in judgment reported in 1993 (3) SCC 259 in the case of D. K. Yadav Vs. J.M.A. Industries Ltd. The relevant Paras 2, 14 and 16 of the said judgment are quoted herein below:-

"2. Clause 13(2)(iv) Standing Order reads thus:

"If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless

(a) he returns within 8 calendar days of the commencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be; and

(b) explains to the satisfaction of the manager/management the reason of his absence or his inability to return on the expiry of the leave, as the case may be. The workman not reporting for duty within 8 calendar days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the muster-rolls in such an eventuality."

A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calendar days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the manager/management of his reasons for absence or inability to return to the duty on the expiry of the leave. On completion of eight calendar days' absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from the muster-rolls.

It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside.

This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic inquiry nor gave 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 is 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."

Thus, the declaration has been made by the Apex Court in above judicial pronouncements that the principle of natural justice has to be read into Standing Order applicable in the Industrial Concerns. Further any methodology of termination of service amounts to retrenchment except specifically excluded by Section 2(oo) of the Industrial Disputes Act, 1947. Section 2(oo) of the Industrial Disputes Act, 1947 reads as under:-

"Section 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include.

(a) voluntary retirement of the workman; or

(b) 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 ; or

[(bb) termination of the service 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 or of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) termination of the service of a workman on the ground of continued ill-health:]"

Retrenchment means termination of service for any reason whatsoever, and it covers every kind of termination of service except excluded by Section 2(oo). Termination of service in terms of Standing Order (Supra) amounts to retrenchment. This view has been taken by full Bench of the Allahabad High Court in the case of Kailash Motors Vs. Presiding Officer, Labour Court as reported in 2003 (3) UPLBEC 2407.

In view of above discussion and judicial pronouncements, this Court finds that the order of striking off the name of the concerned workman from the roll of the company amounts to retrenchment and further since requirement of Section 25F has not been complied with, it is not justified. In the present case the workman has raised industrial dispute in the year 1995 i.e. after 10 years of dismissal and further the present writ petition has been filed after 9 years of the Award. The petitioner has attained the age of superannuation.

Every legal injury requires judicial remedy. Considering the entire fact as discussed above and the period of service of the petitioner, this Court finds that the compensation of Rs.1 Lac would meet the ends of justice.

Accordingly, respondent is directed to pay Rs.1 Lac within two months from to-day. Accordingly, the impugned Award dated 13.03.2004 is, hereby, set aside and the writ stands allowed.