Sita Ram vs Presiding Officer, Labour Court and Others

R.P. Sethi, J.—Vide endorsement No. 10 SAGH/151-A-88/ 591158-62 dated September 3, 1989, the Labour Commissioner, Punjab, Chandigarh referred the following dispute for adjudication to the Labour Court u/s 10(1) of the Industrial Disputes Act, 1947 (for short the ''Act'').

"Whether termination of Services of Shri Sita Ram, Workman, is justified and in order? If not, to what /relief/exact amount of compensation is he entitled?."

After filing of the pleadings, the Labour Court framed the following issues :-

Whether the reference is bad in law as alleged?

Whether the order of termination of services of the workman is justified and in order?

Relief.

Issue No. 1 was not pressed.

While deciding Issue No. 2, the Labour Court held that as the workman had absented from duty w.e.f. January 28, 1988, the management was justified in terminating his services on March 25, 1988 vide letter Ex. M.7. The Labour Court concluded that the case of the workman was abandonment of service and not of retrenchment.

''Retrenchment'' has been defined in Section 2(oo) of the Act to mean :

"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 conduct 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 behalf contained therein ; or

(c) termination of the services of a workman on the ground of continued ill-health.

Absence from duty is not covered by any of the exceptions as enumerated in Sub-clauses (a), (b), (bb) and (c). Absence from duty can at the most be held to mean to be a misconduct. The termination of services on the ground of misconduct could not be resorted to without holding an enquiry or complying with the provisions of the Act.

In Jai Shanker Vs. State of Rajasthan, the Supreme Court held that the removal of a workman from service for over-staying his leave without holding enquiry or giving an opportunity to show-cause was illegal despite the fact that service regulations provided that any individual who absented himself without permission after the end of his leave would be considered to have sacrificed his appointment. Discharge from service of an incumbent by way of punishment amounted to removal from service.

This Court also in Management of Modella Woolen Ltd. v. Presiding Officer, Labour Court 1993 2 104 P.L.R. 383 held that the termination of services on the ground of absence from duty constitutes termination by misconduct which was not permissible unless proper enquiry was held according to the principles of natural justice.

In the instant cases, the termination of services of the petitioner-workman was admittedly by way of punishment and was not inflicted after holding an enquiry within the meaning of Section 25-F of the Act. The absence simpliciter by itself cannot be equated with abandonment of the service. According to the dictionary ''absent'' means "not present". It also means not being in a particular place at a certain time. The absence therefore means to be absent from specified position and not physically present. Abandoned on the other hand connotes to a conscious decision of a person who relinquishes the position held by him. It means complete leaving of things as a final rejection of one''s responsibilities. According to Oxford Dictionary it means, to let go, give up, renounce, leave off, to cease to hold, use or precise. The meaning of the word ''abandoned'' depends upon the context in which it is intended to be used. The Labour Court appears to have completely ignored the settled provisions of law and passed ajudgment merely on hypothesis. As the termination of services of the petitioner-workman in the instant case amounts to retrenchment, the respondent-employer was under a legal obligation to follow the procedure prescribed u/s 25-F of the Act. As admittedly the procedure u/s 25-F has not been followed, the action of the respondent-employer was unjust and the Labour Court was not justified in rejecting the reference made to it.

Under the circumstances, the writ petition is allowed and the award of the Labour Court is set aside. The petitioner-workman is directed to be reinstated forthwith with continuity of service and back wages from the date of demand notice.