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2025 DIGILAW 1153 (GAU)

Kishlay Foods Private Limited v. State of Assam

2025-07-22

DEVASHIS BARUAH

body2025
JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. Y Kothari, the learned counsel appearing on behalf of the petitioner. Mr. A Dasgupta, the learned Senior Counsel assisted by Ms. B Das, the learned counsel, who appears on behalf of the respondent No.3. Ms. U Das, the learned Additional Senior Govt. Advocate, Assam who appears on behalf of respondent No.1. 2. The petitioner herein has approached this Court challenging the award dated 10.05.2016 passed in Reference Case No.2/2015 and Case No.1/2015. The petitioner has also assailed the execution proceedings being Execution Case No.4/2016 pending before the Court of the learned District Judge, Kamrup(M) Guwahati, which is consequential to the Award dated 10.05.2016. 3. The brief facts which had led to the present proceedings are that the respondent No.3 was initially appointed as a contract employee by the petitioner company on 05.08.2003 and subsequently his services were regularized as permanent employee on or from 01.09.2006 with a permanent ESI No.430069555. It is alleged on behalf of the petitioner that the respondent No.3 took leave on 10.06.2013 without making any formal application as per the procedure of the company and chose to come back to rejoin after 1(one) month 20(twenty) days of unauthorized absence i.e., from 10.06.2013 to 30.07.2013. The petitioner company on the basis of Clause 11(b) of its Standing Orders, dispensed with the services of the respondent No.3. The respondent No.3 being aggrieved preferred an application under Section 2 A (2)/33 C (2) of the Industrial Disputes Act, 1947 (for short, the Act of 1947), challenging the said termination of the respondent No.3 before the learned Labour Court, Guwahati. This application was registered as Case No. 1/2015. In the meantime, the appropriate Government, i.e. the State of Assam had made a reference to the learned Labour Court, Guwahati vide Notification dated 30.01.2015 and the issues which were referred to were: (i). Whether the workman is justified in demanding more money above his legal dues from the management of M/s. Kishlay Foods Private Ltd.? (ii). If not, then what relief the workman is entitled to? 4. Before proceeding further, this Court finds it pertinent to take note of the application so filed by the respondent No.3 under Section 2 A (2)/33 C (2) of the Act of 1947, which was registered as Case No.1/2015. (ii). If not, then what relief the workman is entitled to? 4. Before proceeding further, this Court finds it pertinent to take note of the application so filed by the respondent No.3 under Section 2 A (2)/33 C (2) of the Act of 1947, which was registered as Case No.1/2015. The case of the respondent No.3 was that the respondent No. 3 went to his native place at Bihar on leave for one month from 10.06.2013 with due approval with an advance payment of Rs.7000/- on endorsement of the foreman Binay Srivastav; in charge of the office Aswini Goswami; Accountant, Sudeep Dutta and Cashier, Ram Gopal Sharma. The respondent No.3, further stated that in Bihar, during leave, he had to take medical treatment on account of high fever on 05.07.2013 and resultantly he had to delay his return from Bihar and the respondent No.3, reported to his duty on 30.07.2013 with medical certificate. It is the case of the respondent No.3 that the petitioner company herein refused to allow him to join his duty and further imposed restriction upon his entry into the premises of the establishment and the respondent No.3 alleged such a termination to be an illegal termination. It was further alleged that on 10.09.2013, the petitioner company, called the respondent No.3 and verbally offered a lump sum of Rs.40,000/- as full and final settlement of his claim for reinstatement. The respondent No. 3 disagreed and moved for settlement through conciliation. The authority, Labour Officer-cum- Conciliation Officer in the office of the Assistant Labour Commissioner, Kamrup, called the parties and tried to attain an amicable settlement, but failed. The relief which was sought for in the said application is to determine the amount to which the respondent No.3 was entitled to. 5. It is very pertinent also to take note of that as on the date when the present proceedings are being taken up, the respondent No.3 would be 65 years as submitted at the Bar. 6. The record further reveals that both the proceedings being Case No.1/2015 and Reference Case No.2/2015 were consolidated by the learned Labour Court and, thereupon, the award was passed on 10.05.2016, holding inter alia that the respondent No.3 would be entitled to reinstatement with 50% backwages. It is the finding of the learned Labour Court that the petitioner company did not give any opportunity to the respondent No.3 to defend himself. It is the finding of the learned Labour Court that the petitioner company did not give any opportunity to the respondent No.3 to defend himself. Not only that a show cause notice was also not issued to the respondent No.3, which was in violation to the Principles of Natural Justice. 7. Aggrieved by the award dated 10.05.2016 passed by the learned Labour Court, Guwahati, the present proceedings was filed on 10.02.2017. The record reveals that vide an order dated 24.03.2017, this Court had stayed the impugned award dated 10.05.2016. This Court further finds it relevant to take note of that the respondent No.3 had filed an application before this Court on 12.07.2017, claiming the last drawn wages in terms with Section 17 (B) of the Act of 1947 and this Court vide an order dated 09.02.2018 directed that the petitioner be paid the last drawn wages during the pendency of the instant proceedings w.e.f. the date of filing of the writ proceedings. It has been submitted at the bar that once the petitioner having come to realise that the respondent No.3 had attained his age of superannuation, the last drawn wages as directed by this Court in IA(C) No.2345/2017 had been stopped. 8. In the backdrop of the above narration of the facts, the question arises before this Court as to whether the impugned Award dated 10.05.2016 is required to be interfered with. 9. Mr. Y Kothari, the learned counsel appearing on behalf of the petitioner, drew the attention of this Court to Clause 11(b) of the Standing Orders insofar as, the petitioner company is concerned and submitted that as the respondent No.3 had absented himself for a period of 10(ten) days without seeking any leave, the respondent No.3 had voluntarily abandoned his services, and, as such, it is a case where, by virtue of the Standing Orders, the respondent No.3 had abandoned his services, for which, there was no necessity of issuance of any notice, not to speak of any disciplinary proceedings to be initiated. In that regard, he has referred to two judgments of the Supreme Court in the case of Vijay S. Sathaye Vs. Indian Airlines Ltd. & Ors. reported in (2013) 10 SCC 253 as well as Manju Saxena Vs. Union of India and others reported in (2019) 2 SCC 628 10. In that regard, he has referred to two judgments of the Supreme Court in the case of Vijay S. Sathaye Vs. Indian Airlines Ltd. & Ors. reported in (2013) 10 SCC 253 as well as Manju Saxena Vs. Union of India and others reported in (2019) 2 SCC 628 10. The learned counsel for the petitioner while referring to the two judgments submitted that as the petitioner had abandoned his services, the question of issuance of any notice, whatsoever, does not arise, which the learned Labour Court failed to appreciate. The learned counsel for the petitioner further submitted drawing the attention of this Court to the application so filed by the petitioner under Section 2 A (2)/33 C (2) of the Act of 1947 and submitted what the petitioner sought is not a case of reinstatement, but is a case pertaining to additional amounts as would be apparent from the relief so sought for in the said application. The learned counsel further submitted that from the very reference so made by the Government in terms with Section 10 of the Act of 1947, is only in relation to what additional amount the respondent No.3 is entitled to and not a case of reinstatement. He, therefore, submitted that the learned Labour Court had exceeded its jurisdiction in directing reinstatement with 50% back wages. 11. Per contra, Mr. A Dasgupta, the learned Senior Counsel for the respondent No.3 drew the attention of this Court to the Judgment of the Supreme Court in the case of DK Yadav Vs. JM Industries Ltd. , reported in (1993) 3 SCC 259 and submitted that the instant case is squarely covered by the said judgment. The learned Senior Counsel for the respondent No.3 submitted that in the instant case the respondent No.3, no doubt, had not joined his duty for a period of 50 days, but he had duly intimated his immediate superiors and it can be seen from the application so submitted. This aspect of the matter was also proved during the proceedings before the learned Labour Court. 12. The learned counsel further submitted that the Principles of Natural Justice duly applies to the facts of the present case and if a show cause notice would have been issued, the respondent No.3 would have been in a better position to explain the reasons why the respondent No.3 could not attend his duties immediately. 12. The learned counsel further submitted that the Principles of Natural Justice duly applies to the facts of the present case and if a show cause notice would have been issued, the respondent No.3 would have been in a better position to explain the reasons why the respondent No.3 could not attend his duties immediately. The learned Senior Counsel further submitted that the management of the petitioner company, even they did not let the respondent No.3 to enter the premises and as such, the respondent No.3 could not provide an explanation which right he had, in terms of Clause 12(c) of the Standing Orders itself. The learned Senior Counsel further submitted that this is a case of retrenchment as defined in Section 2 (oo) of the Act of 1947 and as would be very apparent from the judgment in the case of DK Yadav (supra) taking into account the similarity of the facts involved and if it is a case of retrenchment, the mandate as provided in Section 2 5F of the Act of 1947 was required to be followed. He, therefore, submitted that this is not a case wherein this Court should exercise its certiorari jurisdiction. Analysis and Decision: 13. From the materials on record, it would be seen that the respondent No.3 had absented himself from 10.06.2013 to 30.07.2013. There is no dispute in that regard. 14. It is the case of respondent No.3 that he had informed his immediate superiors that he would be going to his native place at Bihar for a period of 1(one) month. But on account of falling ill, he had to undergo certain treatment, which resulted in the respondent No.3 taking steps to join the establishment of the petitioner only on 30.07.2013. The establishment of the petitioner, however, relies upon Clause 11(b) of the Standing Orders, which reads as under: “11(b).A workman remaining absent without leave for a period of ten days (including weekly off and all types of holidays) or more at a stretch, shall be deemed to have abandoned the services and his name would be struck off without any notice/pay or compensation from the Muster roll of the establishment.” 15. From a reading of the above quoted clause in the Standing Orders, would show that if a workman remains absent without leave for a period of 10 days (including weekly off and all types of holidays), or more at a stretch, the workman shall be deemed to have abandoned the service and his name would be struck off without any notice /pay or compensation from the muster roll of the establishment. 16. This Court further finds it relevant to take note of Clause 11(c) of the Standing Orders which is reproduced hereinunder: “11(c). In the above circumstances, the Manager may consider any satisfactory explanation of the workman for his continued long absence and can order for a fresh appointment as ‘Substitute’ or ‘Temporary’ at his sole discretion.” 17. From a perusal of the above-quoted clause in the Standing Orders shows that there is an opportunity provided in the Standing Orders itself which permits the workman to provide an explanation for his absence. Nothing has been brought on record on behalf of the Management of the petitioner that such an opportunity was afforded to the respondent No.3. Rather, it is the specific case of the respondent No.3 that he was not even permitted to enter the premises on and after 30.07.2013. In opinion of this Court, this opportunity which the workman/the respondent No.3 had in terms with Clause 11(c) is a valuable right conferred upon the workman to explain his unauthorized absence. 18. This Court further finds it pertinent to take note of the application so filed by the respondent No.3 under Section 2 A (2)/33 C (2) of the Act of 1947 which has been registered as Case No.1/2015. In the said application, the respondent No.3 did not seek for reinstatement. Rather what the respondent No. 3 had stated that he was offered a lumpsum of Rs.40,000/- which the respondent No.3 did not agree and sought for a determination of the said amount by the learned Labour Court. 19. This Court further finds it very pertinent to take note of the reference so made by the Government of Assam to the learned Labour Court vide Notification dated 30.01.2015. The point for determination which were referred have already been quoted at paragraph 13 of the instant judgment. 20. 19. This Court further finds it very pertinent to take note of the reference so made by the Government of Assam to the learned Labour Court vide Notification dated 30.01.2015. The point for determination which were referred have already been quoted at paragraph 13 of the instant judgment. 20. From the points of determination for which the Reference was made by the Government of Assam and the application so filed by the respondent No.3 cumulatively shows that the respondent No.3 was more interested in the amount in the form of compensation or otherwise on account of illegal termination, rather than reinstatement. In the backdrop of the above factual facts, this Court now finds it relevant to take note of the judgments of the Supreme Court referred to by the learned Senior Counsel appearing on behalf of the respondent No.3 i.e., the judgment rendered in the case of DK Yadav (supra). 21. It is pertinent now to take note of the brief facts which led to the judgment rendered by the Supreme Court in the case of DK Yadav (supra) wherein the workman had absented from duty for a period of 8(eight) days continuously and in terms with the certified Standing Orders, the workman was held by the Management to have lost his lien on employment. It is relevant to take note of that the workman therein had submitted an explanation which was not taken into consideration by the Management therein and in that context, the Supreme Court held that the termination of a Workman for his absence amounted to misconduct and such termination had to comply with the Principles of Natural Justice. The Supreme Court further held that as there was no opportunity so granted to the workman therein, and there was no enquiry held and there was a readiness on the part of the workman therein to join his services, there was a direction for reinstatement of the workman with 50% back wages. This aspect of the matter can be discerned from a perusal of paragraph 15 of the said judgment rendered by the Supreme Court in DK Yadav (supra), which is reproduced herein under: “ 15. In this case admittedly no opportunity was given to the appellant and no inquiry was held. This aspect of the matter can be discerned from a perusal of paragraph 15 of the said judgment rendered by the Supreme Court in DK Yadav (supra), which is reproduced herein under: “ 15. In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant’s plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice.” (emphasis supplied on the above noted portion) 22. The relief so granted by the Supreme Court can be seen from paragraph 16 of the said judgment which is reproduced hereinunder: “16. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic inquiry nor gave the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accordingly. The parties would bear their own costs.” 23. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accordingly. The parties would bear their own costs.” 23. In the backdrop of the above, it would be seen that the learned Labour Court in the impugned award dated 10.5.2016 applied the said principle as held by the Supreme Court in the case of D.K. Yadav (supra) and granted the relief of reinstatement with 50% backwages, irrespective of the fact that the respondent No.3 never sought for backwages nor the reference so made by the Government was in relation to reinstatement. 24. The learned counsel appearing on behalf of the petitioner, though, had referred to the judgment in the case of Vijay S. Sathaye (supra). But in the opinion of this Court, the said judgment would have no relevance taking into account that the said petitioner therein was working as the Deputy General Manager Operations, and such person under no circumstances would come within the meaning of Section 2 (s) of the Act of 1947 to be entitled to the benefits in terms with the Act of 1947. 25. This Court further finds it relevant now to take note of the judgment in the case of Manju Saxena (supra) which throws some light in respect to what relief this Court can grant in the present facts. It is an admitted position that as on date, the question of reinstatement of the respondent No.3 does not arise, taking into account that the respondent No.3 had already crossed the age of superannuation. This Court further finds it relevant to take note of paragraphs 6.3, 6.4, 6.5 which being pertinent are reproduced hereinunder: “6.3. The concept of “abandonment” has been discussed at length in a judgment delivered by a three-Judge Bench of the Supreme Court in Buckingham & Carnatic Co. Ltd. v. Venkatiah wherein it was held that abandonment of service can be inferred from the existing facts and circumstances which prove that the employee intended to abandon service. This case was followed by a two-Judge Bench in Vijay S. Sathaye v. Indian Airlines Ltd. 6.4. In the case before us, the intentions of the appellant can be inferred from her refusal to accept any of the four alternative positions offered by R-2 Bank. This case was followed by a two-Judge Bench in Vijay S. Sathaye v. Indian Airlines Ltd. 6.4. In the case before us, the intentions of the appellant can be inferred from her refusal to accept any of the four alternative positions offered by R-2 Bank. It is an admitted position that the alternative positions were on the same pay scale, and did not involve any special training or technical know-how. In any event, the claims raised by the appellant before various forums were with respect to enhancement of compensation, which are monetary in nature. The appellant’s conduct would constitute a voluntary abandonment of service, since the appellant herself had declined to accept the various offers of service in the Bank. Furthermore, even during conciliation proceedings she has only asked for an enhanced severance package, and not reinstatement. 6.5. Once it is established that the appellant had voluntarily abandoned her service, she could not have been in “continuous service” as defined under Section 2 (oo) the ID Act, 1947. Section 2 5-F of the ID Act, 1947 lays down the conditions that are required to be fulfilled by an employer, while terminating the services of an employee, who has been in “continuous service” of the employer. Hence, Section 2 5-F of the ID Act, would cease to apply on her.” 26. The findings so arrived at by the Supreme Court in the case of Manju Saxena (supra) and, more particularly, in the above quoted paragraphs show certain similarity in respect to the case of respondent No.3 herein, inasmuch as, what the respondent No.3 had sought for is as regards determination of a higher amount on account of illegal termination, rather than reinstatement. This Court further finds it apposite to observe that the Supreme Court in the case of Manju Saxena (supra) having taken note of that the workman therein having already received a higher amount than what the workman actually had claimed observed that the amount which has been received by the workman therein should be deemed to be the full and final settlement. 27. In the case in hand, the question of reinstatement of the respondent No.3, did not arise also as would appear from the application filed by the Respondent No.3 as well as the Reference made by the Government of Assam. 27. In the case in hand, the question of reinstatement of the respondent No.3, did not arise also as would appear from the application filed by the Respondent No.3 as well as the Reference made by the Government of Assam. As such, the learned Labour Court in the opinion of this Court exceeded its jurisdiction in directing reinstatement. Be that as it may, a valuable right of the Respondent No.3 was taken away without confirming to the Principles of Natural Justice. 28. This Court further takes note of that the respondent No.3 had received certain amounts on account of the order dated 09.02.2018 passed in connection with the application filed under Section 17B of the Act of 1947. This Court further is of the opinion that on account of the respondent No.3 having been deprived of his rights to explain his absence without confirming to the Principles of Natural Justice, the Respondent No.3 is entitled to some compensation. It is the opinion of this Court that the directions to pay 50% of the backwages by the learned Labour Court would be the reasonable compensation. 29. Accordingly, the instant writ petition stands disposed of with the following observation(s) and direction(s): (a). The non-affording of the opportunity to the petitioner to give an explanation in terms with Clause 11(c) of the Standing Order amounts to violation of the Principles of Natural Justice. (b). The violation of the Principles of Natural Justice, which is a facet of Article 14 and 21 of the Constitution, being writ large, this Court holds that the petitioner is entitled to compensation. (c). The direction to pay 50% of the back wages by the learned Labour Court would be deemed to be the reasonable compensation. Under such circumstances, this Court directs that the respondent No.3 would be entitled to back wages @50% as directed by the learned Labour Court. In the meantime, if any amount is paid by the establishment of the petitioner, the same shall be deducted while computing the amount to which the respondent No.3 would be entitled to. (d). If it is found that the respondent No.3 had got more amount than what the respondent No.3 is entitled to as per the directions passed hereinabove, the amount already paid shall be deemed to be the full and final settlement and as such there shall be no recovery. (e). (d). If it is found that the respondent No.3 had got more amount than what the respondent No.3 is entitled to as per the directions passed hereinabove, the amount already paid shall be deemed to be the full and final settlement and as such there shall be no recovery. (e). This Court further directs that if in the circumstance it is found that the respondent No.3 is entitled to certain amount, the said amount be paid to the respondent No.3 within 60 days from the date of the instant judgment. 30. There shall be no order as to costs. 31. Send back the records.