M/s. Weston Electronic Ltd. vs Presiding Officer, Labour Court

S.N. Phukan,C.J.

The present petition has been filed by the employer against the award of the learned Presiding Officer, Labour Court, Shimla camp at Chamba, dated 5.1.1995 in Reference Case No. 84 of 1992.

Respondent No. 2 - workman was employed as Assistant Technician by the Petitioner-Company on 27.5.1985 and he continuously worked upto 28.5.1991. The services of the Petitioner were terminated without notice and compensation and, therefore, an industrial dispute arose. Accordingly, the dispute was referred to the Labour Court by the State Government vide Annexure-P.7 to writ petition. The Labour Court framed an issue as to whether termination of the Petitioner was illegal and un-justified. The Labour Court answered this issue against the writ-Petitioner and in favour of the employee and by the impugned award, termination order was set aside and the Petitioner was ordered to be re-instated with full back wages and other consequential benefits. Feeling aggrieved by the impugned order the present writ petition has been filed by the employer.

Heard learned Counsel for the Petitioner and learned Counsel for Respondent No. 2.

From the award as well as pleadings it is clear that the Petitioner was transferred from Dharamshala to Bombay on 9.5.1991 but he did not proceed and absented himself with effect from 14.5.1991 and subsequently by the order dated 28.5.1991 passed by the employer, his name was removed from the roll of the Petitioner-Company.

According to the Respondent workman during the above period he was ill and hospitalised, and he challenged the termination order before the Labour Court on two grounds, firstly on account of violation of Section 25 of the Industrial Disputes Act, 1947 and secondly that no enquiry was conducted.

According to the learned Counsel for the Petitioner, in view of the certified Standing Orders, Clause 13(4), of the Company, which has been quoted at para 3 of the writ petition, as the Petitioner absented himself for more than eight days, he lost his lien and, therefore, termination order was justified and for that purpose, no enquiry was necessary. Learned Counsel for the Petitioner has placed reliance on a decision '' of the apex Court in case National Engineering Industries Ltd. Vs. Hanuman,

Before we consider the contentions raised by learned Counsel for the parties, we quote below Clause 13(4) of the Certified Standing Orders:

Any workman who absents himself without permission for more than eight days, shall be deemed to have abandoned his service. A workman remaining absent beyond the period of leave originally granted or subsequently extended shall be liable to loose his lien of appointment unless, he returns within eight days of the expiry of the sanctioned leave and explains to the, satisfaction of the authority granting leave, his inability to resume the duty immediately on the expiry of his leave. The workman who looses his lien under the provisions of the standing order, but reports for duty within fifteen days of the expiry of his leave (i) shall be kept as ''Badli'' if he so desires and his name shall thereupon be entered in the Badli register and (ii) if no Badli are employed, his name shall be kept n waiting list persons to be given preference for employment as and when suitable vacancies occur.

In National Engineering Industries Ltd. (supra), which is a judgment delivered by two Hon''ble Judges, the standing order, which was considered, is pari-materia with the present standing order. In that case a specific point was raised regarding application of principles of natural justice before applying the said clause of the standing order but it was not specifically discussed.

Learned Counsel for Respondent No. 2, namely, the workman, has placed reliance on a decision of the apex court in D.K. Yadav Vs. J.M.A. Industries Ltd., which is a decision rendered by three Hon''ble Judges of the apex Court. In that case also the question of automatic loss of lien of workman for absenting himself from service for more than eight calendar days was considered. The said standing order is also pari-materia with the present standing order. The apex court considered all the Judgments in this regard. We quote below paragraphs 7, 8 and 9 of the said Judgment:

The principal question is whether the impugned action is violative of principles of natural justice. In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, 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 operate in the area not covered bylaw validly made or expressly excluded as held in Union of India (UOI) Vs. Col. J.N. Sinha and Another, 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; 25-FFF 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 service is completed, the need to dispense with the services may arise. In that situation, on compliance with the provisions of Section 25-F 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.

The cardinal point that has to be borne 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 reasonable 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 from acting arbitrarily affecting the rights of the concerned person.

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 giving 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 and Another Vs. The Chief Election Commissioner, New Delhi and Others, the Constitution Bench held that ''Civil consequences'' 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 edn., 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 Vs. Dr. (Miss) Binapani Dei and Others, 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 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.

Finally the Court held that principles of natural justice must be read with the standing order otherwise it would become arbitrary, unjust and unfair violating Article 14 of the Constitution. As no opportunity was given to the workman, the automatic termination order was set aside. As this is a recent decision of three Hon''ble Judges and the question of principles of natural justice has been considered after taking into consideration earlier Judgments of the apex Court, we hold that in the present certified standing order the automatic termination of lien of the workman to the post for over staying his leave cannot be accepted as it visits civil consequences, inasmuch as, the employer invoking the said clause of the standing order has not given opportunity to the workman by giving proper show cause notice. Admittedly, this is not done in the case in hand.

From the award, we find that no evidence was led on behalf of the employer, namely, Petitioner-company. On the other hand, the workman-Respondent No. 2 stated on oath that he was admitted to District Hospital Dharamshala, from 14.5.1991 till 14.7.1991 and that he had sent a copy of the medical certificate to the Petitioner-Company. He also tendered into evidence copy of the medical certificate Ex.PC, wrnun is available as Annexure - P. 11 to the writ petition. According to the learned Counsel for the Petitioner, the medical certificate does not help the statement of the workman-Respondent No. 2 before the Labour Court. We must keep in mind that this Court is not an appellate body and while exercising the writ jurisdiction our powers are limited. However, we have considered the evidence and we find that the statement made by the Petitioner regarding his confinement in hospital was not at all challenged in cross-examination.. From the medical certificate Annexure-P.11, we find that the Medical Officer of the Government hospital clearly certified that it was necessary for the Petitioner to take complete rest for restoration of his health from 18.5.1991 to 16.7.1991 and he was certified to be medically fit to resume his duty on and with effect from 17.7.1991, therefore, the contention of the learned Counsel for the Petitioner cannot be accepted.

For the reasons stated above, the petition is dismissed with costs, which is quantified as Rs. 1,000/-.