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2012 DIGILAW 214 (UTT)

Sudhir Singh v. Bharat Heavy Electricals Limited

2012-05-07

TARUN AGARWALA

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JUDGMENT : Tarun Agarwala, J. The petitioner has filed the present writ petition for the quashing of the order dated June 21, 2005 by which the petitioner's services was terminated and his name was struck off from the rolls of the Workmen's Register with retrospective effect as per Clause 8(i) of Certified Standing Orders of the Company. The facts, leading to the filing of the writ petition, as disclosed in the writ petition is, that the petitioner applied for leave of May 4 and 5, 2005 which was sanctioned. The petitioner did not report for duty after the expiry of the leave and remained absent unauthorisedly. The petitioner has alleged in paragraphs 5, 6, 7 and 8 that he had applied for extension of his leave as he was admitted in a hospital for an ailment of depression and thereafter was shifted to another hospital for treatment of his drug addiction. The petitioner contended that he was issued a certificate of fitness on September 20, 1995 and thereafter he reported for work and moved an application dated September 23, 2005 praying that he may be allowed to join the duties. No heed was paid to his application. The petitioner made several representations, which remained pending, and consequently the present writ petition was filed in the year 2007. It is alleged that while the petitioner was under treatment, the respondents issued an order dated June 21, 2005 indicating that his services had been terminated w.e.f. May 6, 2005. 2. The respondents have filed a counter affidavit indicating that the petitioner was a habitual defaulter in absenting himself unauthorisedly from his duties. The respondents contended that he was advised to improve his conduct and that the authorities also discussed the matter personally with him with regard to his chronic alcoholic tendency, and inspite of his written promise, the petitioner did not improve his conduct. The respondents: contended that they were left with no alternative except to proceed in accordance with the provisions of the Certified Standing Orders of the Company. The respondents: contended that they were left with no alternative except to proceed in accordance with the provisions of the Certified Standing Orders of the Company. The respondents contended that in 1997-98 the petitioner was absent for 109 days, in 1998-99 the petitioner was absent for 103.5 days, in 1999-2000 for 95 days, in January 1, 2000 for 120.5 days, in February 1, 2001 for 238 days, in March 1, 2002 for 243, days, in April 1, 2003 for 147 days and in May 1, 2004 the petitioner was absent for 175 days. The respondents contended that after availing two days of sanctioned leave, the petitioner did not report for duty, consequently, a notice was issued and thereafter his services was terminated for unauthorized absence under Clause 8(i) of the Standing Orders and that his name was struck off from the rolls of the employee's register. 3. The Court has heard Sri Lok Pal Singh and Sri S.S. Chauhan, the learned counsels for the petitioner and Sri I.P. Kohli, the learned counsel for the respondents. At the outset, a preliminary objection was raised with regard to the maintainability of the writ petition. The learned counsel contended that the petitioner had an efficacious remedy of raising an industrial dispute under The U.P. Industrial, Disputes Act and consequently the writ petition should be dismissed on the ground of alternative remedy. In support of his contention, the learned counsel has placed reliance upon a decision of the Supreme Court in Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, AIR 1995 SC 1715 and submitted that the interpretation of the Certified Standing Order could only be considered by the Industrial Court and that the Writ Court should be loathe in entertaining the writ petition in considering the provisions of the Certified Standing Orders of the Company. 4. No doubt the petitioner is a workman, as defined under The U.P. Industrial Disputes Act, and the petitioner has an efficacious remedy of availing an alternative remedy by raising an industrial dispute u/s 4-K of the U.P. Industrial Disputes Act, but the Court, at this stage, is not inclined to entertain the plea of alternate remedy at this stage. The Court finds that the writ petition was entertained in the year 2007. Almost five years have elapsed. The Court finds that the writ petition was entertained in the year 2007. Almost five years have elapsed. Pleadings have been exchanged and it would be a travesty of justice if the Court at this stage delegates the petitioner to an alternative forum. No doubt, interpretation of the Standing Orders and the terms of the contract between the party should ordinarily be left to the industrial Court, and this Court should be loathe in interpreting the provisions of the Standing Orders which is binding between the parties, but having said so, the Court finds from the pleadings that no interpretation of the Certified Standing Orders of the respondents company is required to be adjudicated. The said provision, namely, Clause 8(i) of the Certified Standing Orders of the Company is 'pari materia' with similar provision contained in the Certified Standing Orders of other companies which have been dealt in detail in various judgments of the Supreme Court and the law on this subject has/ been settled and is no longer res integra Consequently, the Court is of the opinion that since disputed questions of fact are not available and the issue which has already been settled by the Supreme Court is only required to be considered in this writ petition, the Court is not inclined to dismiss the writ petition on the ground of alternative remedy. The preliminary objection raised is, consequently rejected. 5. From the pleadings, the Court finds that the petitioner is a permanent employee, working continuously since 1982. A status of a permanent employee is different and distinct from the status of a casual or a temporary workman. The services of the petitioner has been terminated following the provisions of Clause 8(i) of the Certified Standing Orders. For facility, the said provision is extracted hereunder: In the event of an employee remaining absent in excess of the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless he returns within eight days of the expiry of the period. In case an employee loses his lien on his appointment, he shall be entitled to be kept on the list of substitutes. In case an employee loses his lien on his appointment, he shall be entitled to be kept on the list of substitutes. If an employee absents himself for more than eight consecutive days without leave he shall be deemed to have left the service of the project without notice, thereby terminating his contract of service with the Project and no formal charge sheet would be necessary for terminating the service. Provided further that if the concerned employee proves to the satisfaction of the Manager that his absence was on account of sickness or other valid reasons, the Manager may, at his own discretion, convert his absence into leave without pay or with pay if due. 6. A perusal of the aforesaid provision indicates that in the event an employee remains absent in excess of the leave originally granted, he would lose his lien on his appointment unless he returns within eight days of the expiry of the period. Where an employee absents himself for more than eight consecutive days without leave he would be deemed to have left the service of the project without notice, thereby terminating his contract of service and no formal charge sheet would be necessary for terminating the service. The provision further provides that if the concerned employee proves to the satisfaction of the Manager that his absence was on account of sickness or other valid reasons, the Manager may, at his own discretion, convert his absence into leave without pay or with pay if due. 7. The aforesaid provision clearly indicates that no action is required to be taken or done by the employer. There is an automatic provision that the employee would lose his lien of service and that the employee would be deemed to have left the service on his own accord, thereby terminating his contract of service if he absents himself for more than eight days but where the workman reports after the expiry of eight days and shows cause, a discretion is left upon the employer to consider his cause of absence and pass orders accordingly. 8. A similar provision was considered by the Supreme Court in The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, AIR 1964 SC 1272 , wherein the Supreme Court held that the first part of the clause clearly provides an inference that an employee has abandoned or relinquished his services. 8. A similar provision was considered by the Supreme Court in The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, AIR 1964 SC 1272 , wherein the Supreme Court held that the first part of the clause clearly provides an inference that an employee has abandoned or relinquished his services. The Supreme Court held that abandonment or relinquishment of service was always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. The Supreme Court held that the first part of the Standing Order leads to the conclusion that if any employee was absent for eight consecutive days without leave, he would be deemed to have terminated his contract of service and thus relinquished or abandoned his employment. The Supreme Court further held that under the first part, no positive action was required to be taken by the employer. The Supreme Court further held that the second part of the clause which provides that an employee can offer an explanation of his absence and if his explanation was found to be satisfactory by the management, his absence would be converted into leave without pay, etc. The Supreme Court, while considering the second part of the clause, held that before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is required to be given to the employee to offer an explanation and if the said explanation was treated as satisfactory by the management, the inference of termination of contract of service was rebutted and the leave in question was treated as leave without pay, etc. 9. In D.K. Yadav Vs. J.M.A. Industries Ltd., (1993) 3 JT 617 the Supreme Court was considering Clause 13(2)(iv) of the Standing Orders which provided that if the workman remained absent without sanctioned leave, he would lose his lien on his appointment. The said provision contemplated that if the workman was absent for eight consecutive days from duty, he would have deemed to abandon his service and lose his lien on his appointment. The Supreme Court held that the order of termination of the service of the employee visits with civil consequences of jeopardising not only his livelihood but also career and livelihood of his dependants. The Supreme Court held that the order of termination of the service of the employee visits with civil consequences of jeopardising not only his livelihood but also career and livelihood of his dependants. The Supreme Court consequently held that there cannot be any automatic termination of services and that the principles of natural justice must be read in clause 13 of the Certified Standing Orders, otherwise the said provision would become arbitrary, unjust and unfair. 10. In Uptron India Limited Vs. Shammi Bhan and Another, AIR 1998 SC 1681 , a similar provision was again interpreted by the Supreme Court and the Supreme Court, in paragraph 25, held: 25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a, permanent employee, not directly related to “production” in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically. 11. Similarly, the Supreme Court in M/s. Scooters India Ltd. Vs. M. Mohammad Yaqub and Another, (2001) 88 FLR 274 in paragraph 11 held: 11. Therefore, it is clear that there could not be any automatic termination of the respondent on the basis of Standing Order No. 9.3.12. The principles of natural justice had to be complied with. 12. The said principle was again reiterated by the Supreme Court in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat, AIR 2002 SC 2914 wherein the Supreme Court in Paragraphs 15 and 16 held: 75. It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from October 13, 1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorised leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. Is this in strict compliance with the Certified Standing Order - the answer possibly cannot be in the affirmative. Is this in strict compliance with the Certified Standing Order - the answer possibly cannot be in the affirmative. Though however, if the letter dated October 25, 1990 as noticed above is to be taken note of, then and in that event the same thus comes within the ambit of the Certified Standing Order of 10 days' continued absence - the situation however is slightly different in the present context since the letter of October 25, 1990 is an intimation of his name being struck off the rolls of the Company. It is an act, subsequent to the order of termination and if the letter of October 17, 1990 is an indication for such an order of termination/ the same does not come within the ambit or the Certified Standing Order. The High Court on this score stated as below: Even if it is presumed that the petitioner management may have afforded an opportunity to the respondent workman to tender his explanation and as such complied with the principles of natural justice in terms of the decision rendered by the Apex Court in Hindustan Paper Corpn. case yet the question remains, whether the determination of the petitioner management was arbitrary and without application of mind? In our considered view, the rejection of the claim of the respondent workman is absolutely arbitrary and without consideration of the material placed on record by the respondent workman (as discussed in the foregoing paragraph). The Labour Court examined in detail the factual position and returned a finding that the respondent workman had not absented himself from service deliberately or intentionally and also that he had not abandoned his service. It was further concluded that his absence was based on account of his illness which could be affirmed from the medical certificates produced by him. In the aforesaid view of the matter, in our considered view, the action of the petitioner management in rejecting the representation of the respondent workman dated January 30, 1991 was clearly arbitrary and as such it is not sustainable in law. 16. Having regard to the well-settled principle of law as in D.K. Yadav v. J.M.A. Industries Ltd. (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. 16. Having regard to the well-settled principle of law as in D.K. Yadav v. J.M.A. Industries Ltd. (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 is an antithesis to rule of law, equity, fair play and justice - contract of employment there may be but it cannot be devoid of the basis principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law. The letter dated October 17, 1990 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 writ large and we confirm the finding of the High Court as also that of the learned trial Judge and the Tribunal as regards the issue as noticed above. 13. In the light of the aforesaid decisions, the cardinal point that has to be borne in mind, in every case, is whether the employee has been given a reasonable opportunity of presenting his case and the authority should thereafter act fairly, justly, reasonably and impartially and that the principles of natural justice, as provided under Article 14 of the Constitution of India, should be adhered to. It is the fundamental rule of law that no decision should be taken which will affect the right of any person without first being informed of the case and without giving him an opportunity of putting forward his case. An order involving civil consequences must be made consistently with the provisions of natural justice. 14. In the light of the aforesaid, the Court finds that the respondents took a decision to pass an order in the light of Clause 8(i) of the Certified Standing Orders. The Supreme Court in Buckingham and Carnatic Co. An order involving civil consequences must be made consistently with the provisions of natural justice. 14. In the light of the aforesaid, the Court finds that the respondents took a decision to pass an order in the light of Clause 8(i) of the Certified Standing Orders. The Supreme Court in Buckingham and Carnatic Co. Ltd. v. Venkatiah and Another (supra) held that under this provision there is an automatic termination and loss of lien of service of employee and no positive action on the part of the employer was required to be done. The only thing that was required to be done by the employer was to consider the explanation if and when the employee comes back and reports for duty and offers his explanation for his absence. In the present case, such explanation was given which has not been considered. The respondents in their counter affidavits have justified the order of termination on account of his habitual absenteeism from duty. The Court finds under the Certified Standing Orders of the Company there is a provision for imposing penalty for habitual absence without leave or absence without leave for more than eight consecutive days. Under this provision, it was open for the employer to charge the employee and thereafter hold an enquiry and impose the punishment wherein the factum that the petitioner was a habitual absentee could have been considered as a mitigating factor for imposing a penalty but the employer could not be justified by taking an action under Clause 8(i). The Supreme Court has categorically held that no action, whatsoever, is required to be done on the part of the employer under Clause 8(i) of the Certified Standing Orders. 15. In the light of aforesaid, the Court finds that by the impugned order dated June 21, 2005, the employer have not only initiated action under Clause 8(i) of the Certified Standing Order in terminating the services of the workman but has also terminated the services of the workman with retrospective effect i.e. from the date when he remained absent and also struck off his name from the rolls of the employee's register. Striking off the name of the employee from the rolls of the employee's register is a positive act, which amounts to retrenchment under The U.P. Industrial Disputes Act. The Supreme Court in the case of L. Robert D'souza Vs. Striking off the name of the employee from the rolls of the employee's register is a positive act, which amounts to retrenchment under The U.P. Industrial Disputes Act. The Supreme Court in the case of L. Robert D'souza Vs. Executive Engineer, Southern Railway and Another, (1982) 1 LLJ 330 held that the services of a workman who was deemed to have been terminated on the ground that he absented himself from duty without notice and enquiry and without complying with the minimum principles of the natural justice would constitute retrenchment. The Supreme Court held that if the workman had rendered continuous uninterrupted service for one year or more within the meaning of Section 25-F of The Industrial Disputes Act and his services was terminated for any reasons whatsoever and the case does not fall in any of the excepted categories, the termination of the services of the workman would constitute retrenchment and for not complying with the pre-condition to a valid retrenchment, the order of termination would be illegal and invalid. The said decision is squarely applicable to the present circumstances of the case. A decision has been taken by the employer invoking Clause 8 (i) of the Certified Standing Order of the Company, terminating the service of the petitioner and striking off his name from the rolls of the employee's register. Such positive act constitute retrenchment and, since the petitioner was a permanent employee, working since 1982 continuously, the pre-condition to a valid retrenchment having not been complied with by the employer, the order of termination was illegal and invalid and cannot be sustained. Consequently, the order dated June 21, 2005 passed by the respondents cannot be sustained and is quashed. The writ petition is allowed. The employers are directed to reinstate the petitioners on the same post on which he was working. However, since the petitioner has not worked during the intervening period i.e. from the date of termination till today, for this period he would not be entitled for any backwages. However, this period would be treated as having being spent in service for the purpose of calculating other benefits. It would be open to the respondents-employer to take action in accordance with the Certified Standing Order for the misconduct which the petitioner has committed.