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2010 DIGILAW 3319 (PNJ)

Hakam Ali v. The Presiding Officer, Industrial Tribunal-cum- Labour Court Ii, Faridabad

2010-12-10

RITU BAHRI

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Judgment Ritu Bahri, J. 1. This writ petition under Articles 226 and 227 of the Constitution of India has been filed for quashing of the award dated 19.9.1989 of the Labour Court. 2. The petitioner-Sri Hakam Ali was employed by the company respondent No.2 in the year 1969 as a Designer on a monthly wages of Rs.704/-. His services were terminated by the Management on 2.12.1981. The petitioner proceeded on leave as sanctioned to him with effect from 2.11.1981 to 7.11.1981. After expiry of the leave, he did not report for duty. Vide letter dated 10.11.1981 he was directed to resume his duty by the respondent company. On 26.11.1981, another letter was issued to him directing him to report for duty failing which his services were to be discontinued. Finally, on 3.12.1981 his services were terminated. 3. A demand notice was raised on 11.1.1982. Claim statement was filed on 7.10.1982 before the Labour Court. The petitioner has been in service of the respondent company right from 1969 till 2.12.1981. He alleges that before termination, no domestic inquiry was held against him. 4. The respondent took the stand that the petitioner was habitually absent after exhausting his sanctioned leave with effect from 8.11.1981. He has been gainfully employed in the work of Carpenter during the entire period. The Management has alleged that vide letter (Ex.M3) dated 12.11.1981 the petitioner was duly informed that extension of his leave upto 14.11.1981 had been rejected as his application was not supported with any medical certificate of his mother. He was directed to report back on duty immediately. The petitioner joined back on duty on 23.11.1981, and again started absenting himself with effect from 26.11.1981. In this background, he was issued letter dated 27.11.1981 warning him to face the action of termination in case he Joes not join. Vide letter dated 3.12.1981 (Ex.M5) his name was struck off the rolls. The Management has placed reliance on para 27-B (vii) of Certified Standing Order (Ex.M9) which lays down that if the absence is more than 7 consecutive days, the name of the employee can be struck off. The Standing Order covers the present case. 5. The Labour Court after examining the entire evidence was to interpret whether the Certified Standing Order (Ex.M9) covers the present case of termination or whether this termination is within the definition of retrenchment under Section 25-F of the Industrial Disputes Act? The Standing Order covers the present case. 5. The Labour Court after examining the entire evidence was to interpret whether the Certified Standing Order (Ex.M9) covers the present case of termination or whether this termination is within the definition of retrenchment under Section 25-F of the Industrial Disputes Act? 6. The Labour Court has placed reliance on the judgments in 1981-II-LLJ 376, D.C.K. v. Shambu Nath Mukherji AIR 1978 SC page 8 and Buckingham and Carnatic Co. Ltd. v. Venkatish and another AIR 1964 SC page 1272. All the above judgments have held that termination of services due to overstay of leave under Standing Orders is automatic and it does not amount to retrenchment under Section 25-F of the Industrial Disputes Act. Applying the ratio of the above judgments, the Labour Court has held that action of the respondent company in terminating and striking off the name of the petitioner from the rolls is proper and no interference is called. 7. Heard learned counsel for the petitioner. 8. Learned counsel for the petitioner Mr. Arvind Galab has placed reliance on a Supreme Court judgment in M/s Lakshmi Precision Screws Ltd. v. Ram Bahagat AIR 2002 SC 2914. Learned counsel has argued that this judgment of the Supreme Court has examined a case in which by strict compliance of the Certified Standing Orders the termination has been held to be arbitrary in nature. The Supreme Court has observed in paragraph 16 as unden- "Having regard to the well settled principle of law as in Yadav 1993 AIR SCW 1995 (supra), the decision to terminate by reason of a presumption as noticed above, we cannot but lend concurrence to the conclusion of the High Court that the action is purely and surely arbitrary in nature. Arbitrariness in an anti-thesis to rule of law: equity: fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Arbitrariness in an anti-thesis to rule of law: equity: fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice oriented approach as is the present trend in Indian jurisprudence shall have to read as an in-built requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law: The letter dated 17th October cannot by any stretch be treated to be an opportunity since it is only on the fourth day that such a letter was sent - the action of the appellant herein stands out to be devoid of any justification,. neither it depicts acceptability of the doctrine of natural justice or the concept of fairness - arbitrariness is written large and we confirm the finding of the High Court as also that of the learned Trial Judge and the Tribunal as regards issue as noticed above." 9. The petitioner has relied on a judgment in H.D.Singh v. Reserve Bank of India and others AIR 1986 Supreme Court 132. Reliance has also been placed on the judgments in The Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. The Presiding Officer, Labour Court, Chandigarh 5 1990 (2) RSJ 253 and Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherjee 6 AIR 1978 Supreme Court 8. Learned counsel has contended that once the termination is held in violation of Section 25-F of the Industrial Disputes Act, the petitioner is liable to be reinstated with all consequential benefits. 10. Counsel for the respondent has not filed any written statement and has chosen not to appear. 11. After hearing the learned counsel for the petitioner and after going through the judgment in M/s Lakshmi Precision Screws Ltd. (supra), I am of the opinion that in the present case the petitioner had served the respondent company right from the year 1969 till 1981 i.e. for a period of almost 12 years. By applying Section 20 of the Standing Orders strictly and terminating his services by striking off his name from the rolls on 3.12.1981 vide letter Ex.M-5 is arbitrary and against the principles of natural justice. There is non-compliance of Section 25-F of the Industrial Disputes Act, therefore, the order dated 3.12.1981 is liable to be set aside. By applying Section 20 of the Standing Orders strictly and terminating his services by striking off his name from the rolls on 3.12.1981 vide letter Ex.M-5 is arbitrary and against the principles of natural justice. There is non-compliance of Section 25-F of the Industrial Disputes Act, therefore, the order dated 3.12.1981 is liable to be set aside. In view of the judgment in Ms Lakshmi Precision Screws Ltd. (supra) the award of the learned Labour Court dated 19.9.1989 is quashed. It is held that the order dated 3.12.1981 (Ex. M-5) terminating the services of the petitioner is illegal. Since the petitioner has been out of service with effect from 31.12.1981 till date i.e. 29.11.2010, a period of 29 years has elapsed and a direction for reinstatement will not be a proper relief at this stage. Hence, a compensation of Rs. 25,000/- will be an adequate compensation for terminating the service of the petitioner in an arbitrary manner. 12. The writ petition is allowed with the above directions. However, there is no order as to costs.