Skip to content


Chipping and Painting Employers, Association Private Limited Vs. A.T. Zambre and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 3041 of 1967
Judge
Reported inAIR1969Bom274; (1968)70BOMLR506; [1968(17)FLR324]; ILR1969Bom783
ActsIndustrial Employment (Standing Orders) Act, 1946 - Sections 2 and 13A; Industrial Disputes Act, 1947 - Sections 2, 7, 8 and 10(1); ;Code of Civil Procedure (CPC), 1908
AppellantChipping and Painting Employers, Association Private Limited
RespondentA.T. Zambre and anr.
Appellant AdvocateF.S. Nariman and ;P.K. Rele, Advs., i/b., Crawford Bayley and Company Attorneys
Respondent AdvocateR.S. Kulkarni, Adv.
Excerpt:
industrial employment (standing orders) act (xx of 1946), sections 13a, 2(1) - bombay industrial employment (standing orders) rules, 1959. rule 14--industrial disputes act (xiv of 1947), schedule ii entry no. 2, sections 7, 2(k), 10(1)(c), 2(s), 33c--whether special notification under section 13a of act of 1936 necessary to empower labour court to exercise jurisdiction in respect of particular application under section 13a--such application whether can be made by person who was workman before making application--whether labour court under section 13a can grant substantive or consequential relief.;a notification constituting a labour court under the industrial disputes act, 1947 and empowering it to deal with entry no. 2 in the second schedule to the said act as to the application and.....nain, j.1. this is a petition under articles 226 and 227 of the constitution of india against the order dated 9th november 1967 passed by the presiding officer, central government labor court, bombay, ordering the p petitioners to reinstate the respondent no.2, who was a workman employed by them.2. the petitioners are an association limited by guarantee. contractors who take contracts for chipping and painting in the docks are members of the petitioners' association.3. pursuant to the provisions of the dock labour (regulation of employment) act, 1948, the central government published the unregistered dock workers (regulation of jemployment) scheme, 1957, providing for listing by the bombay dock labour , inter alia, of work,men doing the work of chipping and painting in the port. the 2nd.....
Judgment:

Nain, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India against the order dated 9th November 1967 passed by the Presiding officer, central Government Labor Court, Bombay, ordering the p petitioners to reinstate the respondent No.2, who was a workman employed by them.

2. The Petitioners are an Association Limited by guarantee. Contractors who take contracts for chipping and painting in the Docks are members of the petitioners' Association.

3. Pursuant to the provisions of the Dock labour (Regulation of Employment) Act, 1948, the Central Government published the Unregistered Dock Workers (Regulation of jEmployment) Scheme, 1957, providing for listing by the Bombay Dock Labour , inter alia, of work,men doing the work of chipping and painting in the port. The 2nd respondent was a listed worker under the said Scheme, and as such he was issued an identity card by the Bombay Dock Labour Board , entitling him to enter the port area and to do the work that may be allocated to him through the petitioners for and on behalf of the members of of the petitioners who are listed employers under the said Scheme. The 2nd respondent is alleged to have been injured on 26th June 1965 and he was granted leave on that ground till 12th July 1965 without submitting any application for extension of leave, He was, therefore, treated by the petitioners as having abandoned his services in terms of Order No. 19 of the Standing Orders for Chipping and Painting Workers in the Port of Bombay.

4. On behalf of the 2nd respondent, the dockers' union, Bombay, made a demand for his reinstatement. Efforts at conciliation failed. A request was thereafter made to the Government of India for referring a dispute as to reinstatement of 2nd respondent to a Labour Court under the provisions of S.10(1)(c) of the Industrial Disputes Act By a letter India for referring a dispute as to reinstatement of 2nd respondent to a Labour Court under the provisions of S. 10(1)(c) of the Industrial Disputes Act. By a letter dated 7th April 1966 the Government of India turned down this request, and stated that the Government of India did not consider this to be a fit case for reference to adjudication. On 12th May 1966, the 2nd respondent tiled an application No.LCB -152 of 1966 before the Central Government , Labour Court, which was then presided over by Mr. Salim Merchant , the retirement M Mr. Salim Merchant, the respondent No. 1 was appointed in his place by notification dated 24th October 1967.

5. In the application, it was urged that the 2nd respondent received injuries as a result of an accident arising of and during the course of the employment on 26th June 1965, that he was granted leave for 15, that he was granted leave for 15days but could not report for duty as he was under medical treatment, and that he reported for duty on 10th December 1965 as son as he got a certificate of fitness dated 12th November 1965. He contended that Standing Order No.19 had been wrongly applied to him and that he should be reinstated.

6. The petitioners filed a written statement in which they took up the contention that the respondent No.1 had no jurisdiction to entertain the application of the 2nd respondent under Section 13A of the Industrial Employment (Standing orders) Act 1946 on several grounds with which we shall deal later. By an order dated 9th November 1967 the respondent No.1 directed the petitioners to reinstate respondent No. 2. The present petition has been for quashing the said order.

7. Before us, the petitioners have challenged the jurisdiction of the respondent No.1 to entertain the application No.LCB -152 of 1966 filed by the 2nd respondent on the ground that the 1st respondent has no jurisdiction to entertain the same for the following reasons:-

(a) That a special notification Section 13A of the Industrial Employment (standing Orders) , Act 1946 was necessary in order to empower the presiding officer, Central Government Labour Court, Bombay (appointed under the Industrial Disputed Act, 1947) to exercise jurisdiction specifically in respect of the application of the 2nd respondent.

(b) In the alternative to the foregoing that in any case a special notification under Section 13A was necessary in order to empower the 1st respondent to exercise jurisdiction in respect of application under Section 13A

(c) The 2nd respondent was not employed by the petitioners at the time of making his application under Sec, 13A and was therefore, not a workman within the meaning of that word in Section 2(I) of the Industrial Employment (Standing Orders) Act, 1946 and was, therefore, not entitled to make an application under Section 13A.

(d) Section 13A merely permits a Labour Court to decide questions as to application or interpretation of a standing order and does not empower a Labour Court to grant substantive or consequential relief. The application of the 2nd respondent being for reinstatement, was of the Industrial Disputes Act, 1947 and did not fall within the scope of Section 13A.

8. Apart from this, the petitioners also took other contentions with which we shall deal later.

9. In order to deal with the challenge to the jurisdiction of the Labour Court, reproduce hereinbelow section 13A of the Industrial Employment (Standing Orders) Act, 1946. The section dread as under:-

'13A . Interpretation, etc. of Standing Orders, Model Standing Order or amendment. -If any question arises as to the application or interpretation of standing order, model standing order or amendment certified under this Act, any employer or workman or any prescribed representatives of workmen may refer the question to any one of the Labour Court constituted under the Industrial Disputed Act,. 1947 (XIV of 1947 ), and specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Count to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties;'

10. It is an admitted fact that by a notification dated 24th October 1967, the respondent No.1 was appointed as presiding officer of the Central Government Labour Court under Section 18 of the Industrial Disputes Act, 1947. It is also an admitted fact that there is no notification issued under Section 13A of the Industrial Employment ( Standing Orders) Act, 1946 either empowering the respondent No.1 to dispose of the application of the 2nd respondent or questions or proceedings as to application or interpretation of a standing order under the provisions of Sections of Section 13A . The question, therefore, is whether without any such notification the respondent No.1 was competent to entertain an application under Section 13A.

11. Section 7 of the Industrial Disputes Act provides that the appropriate Government may be notification in the Official Gazette, constitute one or more Labour Courts for adjudication of industrial disputes relating to any matter specified in the Second Schedule to the said Act and for performing such other functions as may be assigned to them under the Industrial Disputes Act. The Second Schedule provides the matters within the jurisdiction of the Labour Courts. Entry No.1 in the said Schedule pertains to the propriety or legality of an order passed under the Standing Orders. Entry No.2 pertains to application and interpretation of Standing Orders. It is not in dispute that under the provisions Section 7, a Labour Court was constituted and Mr. Salim Merchant was appointed as its presiding officer and that on the retirement of Mr. Salim Merchant a vacancy occurred and under the provisions of Section 8 of the Industrial Disputes Act, respondent No.1 was appointed to fill the said vacancy. Section 2(k) of the Industrial dispute' as meaning any dispute or difference between employers and workmen which is connected with the employment or nonemployment or the terms of employment or with conditions of labour of any person. The application and interpretation of Standing Orders would undoubtedly fall within the definition of an 'industrial dispute', and the respondent No.1 has been appointed as presiding officer of a Labour Court to determine matter, including Entry No.2 in the Second Schedule to the Industrial Disputes Act. An industrial dispute after it is referred to a labour Court under the provisions of Section 10(1)(c) of the Industrial Disputes Act, would be a proceeding. Similarly, a question arising as to the application or interpretation of a standing order under Section 13A could be referred to any Labour Court constituted under the Industrial Disputes Act and would be a proceeding. This means that an industrial dispute referred to a Labour Court under the provisions of Section 10(1)(c) as well as a question referred to a Labour Court under the provisions of Section 13A would both be proceedings. Section 13A provides that a question as to the application or interpretation of a standing order may be referred by a workman to a Labour Court constituted under the Industrial Disputes Act 'and specified for the disposal of such proceedings' by the appropriate Government by notification in the Official Gazette. The dictionary meaning of the word 'such' is 'of the same kind as'. It would, therefore, follow that a question under S. 13A as to the application or interpretation of a standing order would be a proceeding of the same kind as a dispute under entry No.2 in the Second Schedule. If, therefore, the appropriate Government issues a notification in the Official Gazette authorising a Labour Court to decide disputes under entry No.2 in the Second Schedule to the Industrial Disputes Act as to the application and interpretation of Standing Order, a question for decision as to the application or interpretation of a standing order being a proceeding of the same kind as under the Industrial Disputes Act without any further notification, both the proceedings under the Industrial Disputes Act without any further notification, both the proceedings under Section 10(1)(c) of the Industrial Disputes Act pertaining to entry No. 2 in the Second Schedule, and the proceeding under Section 13A being proceedings of the same kind. The words 'and specified for the disposal of such proceedings' in Section 13A would mean under entry No.2 in the Second Schedule our opinion, is the correct interpretation of Section 13A and we hold that the respondent No.1 had jurisdiction to entertain applications under Section 13A to decide questions as to the application or interpretation of a standing order.

12. If the interpretation suggested by the petitioners were accepted, it would be necessary in each case that a workman must first approach the appropriate Government for issuing a notification in the Official Gazette specifying a particular Labour Court to decide an application by a workman under Section 13A for deciding questions as to the application or interpretation of a standing order. This would subject a workman to a very difficult remedy which was perhaps not the intention in introducing Section 13A in the Industrial Employment (Standing Orders) Act, 1946.

13. Our attention has been drawn to the Statement of Objects and Reasons for introducing the Industrial Disputes (Amendment and Miscellaneous Provisions) Bill. 195, which ultimately became Act 36 of 1956, which ultimately became Act 36 of 1956 , and introduced certain changes in the Industrial Disputes Act, 1947 and the Industrial Employment (Standing Orders) Act, j1946 , and among other things introduced Section 13A. The Statement of Objects in published in the Gazette of India., extraordinary, Part I, dated 21st September 1955, at page 430, and Clause 7, pertains to the introduction of Section 13A. The relevant portion reads as under:-

'Provision had also been made or the resolution of difference that may arise between the parties as to the application and interpretation of standing orders. In case of any such difference the parties can approach a Labour Court without the intervention of the appropriate Government. We thin, the object of providing a provision which enables workmen to have a question determined under Section 13A without the intervention of appropriate Government will best be served by the above interpretation which appears to us to be a reasonable interpretation.

14. Mr. Kulkarni for the 2nd respondent argued that rule 14 of the Bombay Industrial Employment (Standing Orders)Rules, 1959, framed under the Industrial Employment (Standing Orders) Act, 1946 , provides for applications under S. 13A of the Act and states that every application made under Section 13A of the Act shall be forwarded to the Labour Court by registered post or be presented to the Clerk of the Court or any other subordinate officer authorized by the Court in that behalf. He argued from this rule that if the intention had been that in each case the Government must by notification specify the Labour Court to which a question under Section 13A must be referred, the provision for sending an application directly by a workman by registered post would be inconsistent with the section. This rule, however, has been framed by the State Government in order to carry out the object of the Act , as they understood if an we cannot rely upon this rule for interpretation of Section 13A except to say that in the view we have taken, the rule appears to be in conformity with the section.

15. Mr. Nariman for the petitioners argued that in Section 13A the use of the words 'any question', 'refer the question' and 'such proceeding' in the singular indicated that in respect of each such question arising as to the application or interpretation of a standing order, the appropriate Government must be notification specify one of the Labour Courts constituted under the Industrial Disputed Act to which a party may refer such question. We cannot accept this contention in view of the fact that any such question much be referred to a Labour Court specified for the disposal of proceedings similar to Section 13A as we have held above. The use of these expressions in the singular is not inconsistent with that view. Mr.Nariman further argued that in the same area the appropriate Government may under Section 7 of the Industrial j Disputes Act establish several Labour Courts for one or more of the matters specified in the Second Schedule to the Act and the use of the expression in the singular is not inconsistent with that view. Mr. Nariman further argued that in the same area the appropriate Government may under Section 7 of the Industrial Disputes Act establish several Labour Courts for one or more of the matters specified in the Second Schedule to the Act and the use of the expression in Section 13A 'may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act. 1947' also indicated that the appropriate Government had to select one of the Labour Courts and specify the same for the disposal of a proceeding by the applicant in a particular case. We are, however, of the opinion that once a Labour Court is constituted to deal with matters in entry No.2 in Second Schedule the question must be referred to such Court so authorised in any area, the party referring the question would obviously have a choice of forums, unless there were certain rules under which his choice was limited.

16. We , therefore, hold that a special notification specifying the Labour Court constituted under Section 7(1) of the Industrial Disputes Act, and empowering it to exercise jurisdiction in respect of a particular application under Section 13A to decide such application and to determine a specific question as to the application and interpretation of a standing order is not necessary.

17. Then we come to the contention of the petitioners in the alternative that in the petitioners in the alternative that in any case Section 13A contemplated that the appropriate Government must by notification in the Official Gazette specify one of the Labour Courts constituted under the Industrial Disputes Act, 1947, to which questions under S.13A must be referred. We have, as stated above, taken the view that a notification constituting a Court under the Industrial Disputes Act and empowering it to deal with entry No.2 in the Second Schedule to the said Act would be a sufficient specification for disposal of applications under Section 13A. In the above view, a separate notification empowering such Labour Courts under Section 13A would also not be necessary.

18. The next contention of the petitioners is that on the date of the application No.LCB-152 of 1966, which was filed on 12th May 1966, the 2nd respondent was not in the employment of the petitioners and was not, therefore, a workman within the meaning of that term in Section 2(I) of the Act and was, therefore, not entitled to refer a question under Section 13A. The word 'workman' has, as stated above been defined in Section 2(I) of the Act. The same word is also defined in Section 2(s) of the Industrial Disputes Act. 1947. We reproduce hereinbelow the definition of the word 'workman' in the Industrial Disputes Act, 1947. The same reads as under-

'2 (s). 'Workman' means any person (including an apprentice ) employed in any industry to do any industry to do any skilled or unskilled manual. Supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied (and for the purposes of any proceeding under this Act in relation to an industrial dispute, in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute) but does not include any such person-

(i) who is subject to the Army Act, 1950 (XLVI of 1950) or the Army Act, 1950 (XLV of 1950) or the Navy (Discipline) Act, 1934 (XXXIV of 1934); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity. draws wages exceeding five hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him. functions mainly of a managerial nature.'

The definition of the word 'workman' in the Industrial Employment (Standing Orders) Act, 1946 is the same as in the Industrial Disputes Act, except that the words in brackets in Section 2(s) as reproduced hereinabove do not occur in Section 2(i) of this Act. These words Act specifically for the purpose of proceedings under that Act as will appear from those words themselves. These words were obviously not necessary for the purposes of Industrial Employment (Standing Orders) Act, 1946. On 12th March 1968 we have delivered a judgment in Special Civil Appln. No.1761 of 1967 (Bom) where a workman who had resigned and was claiming gratuity under an industrial award had made an application under Section 33C(2) of the Industrial Disputes Act. A contention was raised that the applicant was not a workman but was an ex-workman and was not entitled to maintain an application under Section 33-C of the Industrial Disputes Act. In that matter we have held interpreting that part of Section 2(s) of the Industrial Disputes Act, which is the same as Section 2(I) of the Industrial Employment (Standing Orders) Act. 1964, that a person in order to be a workman need not be employed at the time of the making of the application under Section 33C(2) and that a person in order to be a workman need not be employed at the time of the making of the application under Section 33C(2) . In view of the above decision, we hold that an application under Section 13A can also be maintained by a person who before the making of an application was a workman and seeks to have a question as to application or interpretation of a standing order determined in relation to the period during which he was a workman.

19. The next contention of the petitioners on the question of jurisdiction is that under the terms of Section 13A, only questions as to the application or only questions as to the application or interpretation of a standing order could be referred or decision and that the Labour Court would under this section have no jurisdiction either to entertain applications for substantive or a consequential relief or to grant such relief. There seems to be substance in this contention. If substantial or consequential relief could be granted under Section 13A it could only be after determining disputed questions of fact in which evidence might be led. Section 13A, however, contemplates that the Labour Court could decide questions under Section 13A after giving the parties an opportunity of being heard. Hearing, the parties would not, in our opinion, include leading of evidence before the Court for determination of disputed questions of fact. When an industrial dispute is referred under the Industrial dispute is referred under the parties are disputed questions of fact are determined. In our opinion, any claim for substantive or consequential relief could only be the subject-matter of an industrial dispute under Section 2(k) of the Industrial Disputes Act, which could be referred for decision of a Labour Court under Section 10(1)(c). The respondent No.2 made an application under Section 13A made an application under Section 13A for reinstatement. Entry No.3 in the Second Schedule to the Industrial Disputes Act, provides for reinstatement of or relief to workman. An industrial dispute in respect of reinstatement could, therefore, be referred to a Labour Court under the Industrial Disputes Act.

20. Mr. Nariman for the petitioners further argued that the very fact that in the Industrial Employments (Standing Orders) Act, 1946, there is no machinery provided for enforcement of any orders made under Sections 13A if substantive or consequential relief were contemplated, would show that no substantive or consequential relief could be granted under the Industrial Disputes Act, 1947 Section 33C(1) and (4) provide a machinery for execution and grant of reliefs under the Act. We thin that there is substance in this contention and in absence of such machinery in the Industrial Employment ( Standing Orders) Act ,1946, the Legislature could not have contemplated the grant of substantive or consequential relief. If is also contended that if substantive or consequential relief . It is consequential relief could be granted under Section 13A, the provisions of the Industrial Disputes Act, 1947 could to reference under Section 10(1)(c) of the Industrial Disputes Act in respect of a matter falling under entry No.2 in the could be directly referred by a workman to the same Labour Court. This would create a conflict in the working of the two enactments because in respect of some matters, the provisions with regard to some matters, the provisions with regard to reference of disputes by appropriate Government would be rendered of no effect and could be by-passed and a direct application under Section 13A could be made. We do not thin that such result is contemplated. The question whether substantive or consequential relief could be granted under S. 13A of the Industrial Employment (Standing Orders) Act, 1946 arose before the Gujarat High Court in the case of Tata Chemicals Ltd. v. Kailash reported in : (1965)ILLJ54Guj . A passage at p. 55 (of Lab LJ) read as under:-

'Section 13A of the Industrial Employment (Standing Orders) Act, 1948, on a plain grammatical construction rules that if any question arises as to the application or interpretation of a standing or interpretation of standing order certified under the Act, such question can be referred to the Labour Court by the employer or the workman and on such reference, the Labour Court is empowered to decide such question and the decision of the Labour Court is declared to be final and binding on the parties. The section provides only for reference of a question as to the application or interpretation of a standing order certified under the Act and the Labour Court is authorised to give its decision on the question so referred. The function of the Labour Court is limited only to the decision of the question as to the application or interpretation of the standing order which is referred to it. The Labour grant relief in enforcement of the rights and liabilities created by the standing orders. Section 13A has been enacted with a view to resolving differences which may arise between the employer and the workman as to application or interpretation of a standing order which may arise between the employer and the workman as to application or interpretation of standing order which do not involve the enforcement of the rights and liabilities created under the standing orders by giving redress to be given to the workmen, such redress cannot be given by the Labour Court under S. 13A and unless the Union espouses the cause of the workman and raises an industrial Disputes Act ,1947 , the only remedy available to the workman would be to file a civil suit for securing such redress. Section 13A cannot stand in the way of the workman seeking such redress from the Civil Court..'

21. We are in agreement with this view of Gujarat High Court, except the concluding part of it which states that the only remedy available to the workman in respect of a consequential relief arising from a question decided under Section 13A would be to file a civil suit for securing such redress and that Section 13A could not stand d in the m way of the workman seeking such redress from Civil Court. In our view not only could resort be had to a Civil Court, but the aggrieved party could also approach the appropriate Government for reference of an industrial dispute under Section 10(1)(c) of the Industrial Disputes Act, 1947, would also be available to an aggrieved party, and if the question involved was of recovery of money, the aggrieved party would have a further choice of weapons under Section 33C(2) of the Payment of Wages Act. There might be other remedies, but we are not concerned with that. This question also came up for decision before Rajasthan High Court in the case of Mahalaxmi Mills co. Ltd. Beawar v. Labour Court, Rajasthan, reported in 1965 (1) Lab LJ 517. In this case also a view similar to that taken by the Gujrat High Court has been taken, but we must say that the contentions taken in the present application were not taken, in the Rajasthan High Court and there was no occasion for the Rajasthan High Court to determine those questions.

22. The next contention taken by the petitioners is that under Clause 19 of the certified standing orders of the petitioners, the question of intention of a workman to abandon his service is irrelevant and the respondent No.1 has erred in going into the question as to whether the respondent No.2 intended to abandon his service or not.

23. Standing Order No.19 reads as under:-

'19. Leave- (1) All applications for leave shall be submitted to the Association for sanction. The Association shall notify to the workers the procedure for grant or extension of leave, etc.

(2) A worker who fails to report for work for one month or more without prior permission of the Association or fails to report for work within a fortnight of the expiry of leave originally granted or subsequently extended shall be deemed to have voluntarily abandoned his services in the pool and shall not be allowed to resume his duties. He may, however, make an appeal to the Association which may, at its sole discretion, condone his absence on such conditions as it may prescribe. The decision of the Association shall be final.'

It will be noticed that under Clause (2) a workman who fails to report for work within a fortnight of the expiry of leave originally granted or subsequently extended 'shall be deemed to have voluntarily abandoned his services' in the pool and shall not be allowed to resume his duties. The expression 'deemed to have voluntarily abandoned his services' is an inference to be drawn by a fiction of law from the fact that a workman has failed to report for work within a particular time. Question of intention as to whether a workman intended to abandon his services or not may be relevant in some cases for a finding of fact whether a workman intended to abandon his services or not may be relevant in some cases for a finding of fact whether a workman intended to abandon his services or not maybe relevant in some cases for a finding of fact whether a workman has abandoned his services. But in cases where abandonment is to be inferred from a given fact by a fiction of law, question of intention would not arise, nor a question of actual abandonment. In the case of St. Aubyn v. Attorney General reported in 1952 A. C. 15, Lord Redcliffe observed at page 53 as under:-

The word 'deemed ' is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail,. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Some times it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.,'

'When a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something, the Act requires him to be treated as if he were'.

In view of the fact that by a fiction of law, a person is deemed to have abandoned his service, if he does not report for work within a fortnight of the expiry of his leave or extended leave, the respondent No.1 ought not to have gone into dent No.1 ought not to have gone into the question of intention and the fact of expiry abandonment. From the fact of expiry abandonment. From the fact of expiry of leave, if established, by a fiction of law, he would have drawn j the inference that he abandoned the service. Mr.Nariman has cited before us the case of Buckingham and Carnatic Co. Ltd. v. Venkatayya decided by the Supreme Court and reported in : (1963)IILLJ638SC . In this case, it is stated that under common law, an inference that an employee has abandoned or relinquished his service is not easily drawn, unless from the length of service and from other surrounding circumstances, an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. It is further stated that where the parties agree upon the terms and conditions that are included in certified standing orders, the doctrines of common law or considerations of equity would not be relevant. In this case as the Standing Order No.19 creates a fiction of law, we thin the common law principle has no application.

24. With regard to the question whether Standing Order No.19 was applicable to the facts of this particular case, we have to observe that the respondent No.2 was injured on 20th June 1965. He was granted leave up to 12th July 1965. From 13th July 1965 to 10th December 1965, he remained absent without leave. On the interpretation of Standing Order No.19, he should be deemed to have abandoned his service prior to 10th December 1965. He, however, obtained a medical certificate on 12th November 1965, wherein the doctor examining him certified that he had examined the respondent No.2 on 12th November 1965, and that respondent No.2 stated to him that he had been accidentally injured on 26th June 1965 and that his injury was a contusion of right hip and that he was expected to resume his occupation as before immediately. Now, this certificate is issued on the statements made to the certifying doctor by the respondent No.2 himself. There is no question of medical examination involved in it. The injury does not appear to be of a kind which prevented the respondent from going to his employers and applying for extension of leave, if it was necessary. There was, therefore, really no justification or justifiable cause for the failure of respondent No.2 to report for duty. He made no application for condonation of delay. In his application to the Labour Court, there are no facts stated from which a justifiable cause for failure to report could be inferred. Apart from this, notwithstanding the fact that the certificate of 12th November 1965 certified tha he could resume duties immediately the respondent No.2 did not resume his duties, but reported for duty only on 10th December 1965. This certificate is also a copy, and the original was never produced either before the authorities or before the Labour Court. We are, therefore, of the opinion that the respondent No.1 had erred in holding that the respondent No.2 had not failed to report for duty. In view of our holding that the application of the respondent No.2, which was for reinstatement and was a relief consequential to any decision as to application or interpretation of Standing Order No.19 and that it was not open to respondent No.1 to go into the question of the fact of abandonment or the intention to abandon, and also in view of the fact that there is no merit in the contentions of the respondent No.2, we quash and set aside 6the order dated 9th November 1967 made by the respondent No.1 in application No.LCB-152 of 1966 and the proceedings in that application. Rule made absolute. In the circumstances of the case, we make no order as to costs.

25. Rule made absolute.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //