Radhey Shyam Sharma, Workman vs The Presiding Officer, Labour Court and Another

T.H.B. Chalapathi, J.—This writ petition has been filed challenging the award passed by the Labour Court, Rohtak, in reference No. 208 of 1979 dated October 28,1982. The petitioner was appointed by respondent No. 2 as a workman on July 2,1969.While working in respondent No. 2''s company, the petitioner proceeded on leave from November 6, 1978, to November 15,1978. Ac- cording to the petitioner, when he reported for duty on November 16, 1978, after the expiry of the leave period, he was not taken into service. But according to the management, the petitioner never reported for duty on November 16,1978, or even thereafter and, therefore, be lost his lien of appointment. Thereafter the petitioner raised an industrial dispute on June 7, 1979, i.e. nearly seven months after his termination of the services. Thereafter, the matter was referred to the Labour Court for adjudication. By the impugned award, the Labour court found that the management did not terminate the service of the workman and that the workman himself absented from reporting duty after the expiry of the leave and therefore, he lost his lien on appointment in view of clause 9(iii) of the Certified Standing Orders. Accordingly, the claim of the petitioner was rejected by the Labour Court.

Challenging the said award of the Labour Court dated October 28,1982, the petitioner has filed this writ petition on January 20, 1984.

There is no dispute of the fact that the petitioner was appointed in the company of respondent No. 2 in the year 1969 and he proceeded on leave from November 6, 1978 to November 15 1978. The Labour court found that the petitioner did not report for duty on the expiry of the leave. This is purely a question of fact and this Court cannot reappreciate the evidence and interfere with the findings of fact arrived at by the Labour Court. The petitioner also raised dispute only in June, 1979, though his name was struck off from the rolls in November 1978.

The only point for consideration in this writ petition is whether the failure on the part of the petitioner to report for duty amounts to automatic termination within the meaning of clause 9(iii) of the Certified Standing Orders. To come to the conclusion that it amounts to automatic termination the Labour Court relied upon the decision of Kerala High Court reported as 1979 LabIC 1389. It has been held in D.K. Yadav v. J.M.A. Industries Ltd. 1993 (4) S.L.R. 126 by the Supreme Court that :-

"Standing orders do not bring out automatic termination of services when the workman failed to report for duty after the expiry of the leave."

Their Lordships of the Apex Court further held that it is fundamental rule of law that no decision would be taken which would affect the right of any person without giving him an opportunity to put forward his case and that the principles of natural justice are an integral part of the guarantee of equality granted by Article 14 of the Constitution of India. They further held that any law made or action taken by the employer must be fair, just and reasonable and the power to terminate the services of the employee/workman must be exercised with just fair and reasonable procedure, which is an essential ingredient of the principles of natural justice. Thus, the Supreme Court held that the standing orders do not bring out an automatic termination of the services of the employee and the employer must give notice to the employee concerned, that his services are liable to be terminated for violation of the Certified Standing Orders on the ground of his failure to report for duty on the expiry of leave. As this notice was not given, as held by the Supreme Court in the decision referred to above the order of termination is bad and liable to be set aside.

Therefore, I allow the writ petition and quash the order of the Labour Court and direct respondent No. 2 to reinstate the petitioner. Coming to the question of back wages, the services of the petitioner were terminated in November, 1978, he raised the dispute in June, 1979, the Labour Court passed its award on October 28, 1982. The petitioner approached this Court by filing this writ petition only on January 20, 1984, thus there is delay of more than one year in filing the writ petition after the order of the Labour Court. The Labour Court relied upon the decisions which have taken the view that the standing orders bring out an automatic termination and the law has been changed and in 1993 it has been held by the Supreme Court that a notice is required to be given before striking off the name of the workman from the roll due to his failure to report- for duty on expiry of the leave period. Nearly eighteen years have lapsed from the date of termination of the services of, the petitioner. In these circumstances, it cannot be said that the entire blame lies with the management. The petitioner is also at fault. He did not raise an industrial dispute immediately after the order of termination. He waited for a period of more than seven months. As already observed he did not approach this court immediately after the award passed by the Labour Court. He took more than one year. It does not appear that any application was filed in this Court for early hearing. The matter itself is pending for more than twelve years. It does not appear that the petitioner has taken any steps to have the case listed earlier by filing an application. There is no averment in the writ petition that the petitioner is not employed anywhere. In these circumstances, I am of the opinion that the ends of justice will be met if the petitioner is given thirty per cent wages.

Accordingly the writ petition is allowed and the order of the Labour court is set aside. The petitioner is directed to be reinstated in service forthwith if he has not otherwise crossed the age of superannuation and the petitioner is also entitled to thirty per cent back wages from 16.11.1978 till the date of this order.