Skip to content


Binny Limited Vs. Presiding Officer, Labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 10581/84
Judge
Reported inILR1985KAR3128; (1986)ILLJ237Kant
ActsIndustrial Disputes Act, 1947 - Sections 2, 10(1), 10(4), 25B, 25F, 25N, 31(2), 33 and 33A; Employees' State Insurance Act, 1948 - Sections 37, 73, 73(1) and 85
AppellantBinny Limited
RespondentPresiding Officer, Labour Court and anr.
Excerpt:
- indian succession act (39 of 1925), section 59 & 63: [a.n.venugopala gowda, j] proof of execution of will held, when the genuineness /execution of the will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. hence, to prove the execution of the will, the examination of at least one attesting witness is necessary. however, though a will, ordinarily must be proved, keeping in view the provisions of section 63 of the indian succession act and section 68 of the evidence act, in the event of the unavailability of the attesting witnesses on account of death or other similar circumstances being brought on record, the proof of execution of the will and attestation can be considered in the relaxed manner by having recourse.....1. in this petition, the management of binny limited has prayed for quashing the award of the labour court, bangalore, directing reinstatement of the second respondent into service with effect from 30th june, 1977, with continuity of service and full back-wages and other consequential benefits. 2. the facts of the case, in brief, are as follows : the 2nd respondent was a workman in the service of the petitioner. on 21st june, 1977, he was arrested by the police on a charge under s. 120(b) read with ss. 489(a) and (b) of the i.p.c. and as a result, he could not attend to his duties on and after 21st june, 1977. thereafter, he was continuously in judicial custody. the 2nd respondent however, informed the petitioner through his counsel that as he had been in judicial custody, he was unable.....
Judgment:

1. In this petition, the Management of Binny Limited has prayed for quashing the award of the Labour Court, Bangalore, directing reinstatement of the second respondent into service with effect from 30th June, 1977, with continuity of service and full back-wages and other consequential benefits.

2. The facts of the case, in brief, are as follows : The 2nd respondent was a workman in the service of the petitioner. On 21st June, 1977, he was arrested by the Police on a charge under S. 120(b) read with Ss. 489(a) and (b) of the I.P.C. and as a result, he could not attend to his duties on and after 21st June, 1977. Thereafter, he was continuously in judicial custody. The 2nd respondent however, informed the petitioner through his counsel that as he had been in judicial custody, he was unable to attend to his duties. He was released on bail on 14th July, 1977. Immediately thereafter, the 2nd respondent addressed a letter to the petitioner informing him of the fact of his release on bail and requesting the petitioner to take him back to duty. The petitioner, however, did not accede to the request of the 2nd respondent. The 2nd respondent had been charge-sheeted along with 9 others. by judgment dated 24th April, 1978, of the Session Judge, Metropolitan Area, Bangalore, while all the other accused were convicted, the 2nd respondent was honorably acquitted. There was no appeal against the acquittal and the said judgment became final. Immediately thereafter, he addressed a letter dated 27th April, 1978, to the petitioner informing of his acquittal and requesting it to take him back to duty. The petitioner by its letter dated 8th May, 1978, rejected the request of the 2nd respondent. The letter (Ex. M filed before the Labour Court) reads thus :

'We refer to your letter dated 30 April, 1978.

You were deemed to have left the company's service due to absence for 8 consecutive working days from the second session on 21st June, 1977 to the first session on 30th June, 1977 and your averment that you were informed that you were under suspension till the disposal of the case is not correct. Your explanation that you were arrested by the Police on a mere suspicion on 21st June, 1977 for the alleged conspiracy in counterfeiting 100 rupee notes, that you were released of bail in the 2nd week of December, 1977 and that you have been acquitted on 24th April, 1978, is not a satisfactory explanation for your absence. We therefore, regret we are unable to reinstate you into the service of the Company.'

Thereafter, the 2nd respondent raised an industrial dispute which was referred for industrial adjudication by the Government under S. 10(1) of the Industrial Disputes Act, 1947 ('the Act' for short), to the Labour Court, Bangalore. Before the Labour Court, the stand taken by the petitioner was that in view of Standing Order 8 of the Certified Standing Orders of the petitioner-company, the services of the 2nd respondent stood terminated with effect from 30th June, 1977, by operation of law and not by the act of the employee and, therefore, it was not retrenchment within the meaning of the expression under S. 2(oo) of the Act. The alternative stand of the petitioner was that the petitioner was not convinced of the sufficiency of the reason given by the respondent for his absence. The Labour Court rejected both the pleas of the petitioner, and made the award in favour of the 2nd respondent. The operative portion of the award reads thus :

'The management having not established that they had justification in removing the workmen from their services with effect from 30th June, 1977, he is entitled to reinstatement with continuity of service full back-wages and other consequential benefits. He is also entitled to costs of Rs. 100.'

Aggrieved by the award, the petitioner has presented this petition.

The plead of the petitioner is as follows :

(i) According to Standing Order 8 of the Certified Standing Orders, the services of any employee who remains absent consecutively for a period of 8 days stands automatically terminated. Services of the 2nd respondent stood terminated by operation of Standing Order 8. Therefore, no question as to whether the petitioner was justified in terminating the services of the 2nd respondent arose for consideration. On this ground, the reference itself was misconceived and invalid. Further, when the 2nd respondent was physically prevented from attending to his duties on and after 30th June, 1977, because he was in judicial custody, the Labour Court was not justified in making the award to the effect that the 2nd respondent should be reinstated with effect from 30th June, 1977 and was entitled to full salary even for the period during which he was in judicial custody.

(ii) On the facts and circumstances of the case, the petitioner was also justified that the application may by the 2nd respondent for reinstatement in terms of the 2nd part of the Standing Order 8 should not be granted for the reason that the management could not be expected to wait for the outcome of the prosecution against respondent No. 2. The decision of the petitioner was based on the facts and circumstances of the case and there was no justification for the Labour Court to interfere.

3. In support of the contention that the termination of service of the 2nd respondent with effect from 30th June, 1977 would not amount to retrenchment with in the meaning of that expression, as defined in S. 2(oo) of the Act, learned counsel for the petitioner relied on the following decisions of the Supreme Court in Buckingham & Carnatic Company v. Venkatayya, [1963-II L.L.J. 638]; and National Engineering Industries Ltd. v. Hanuman, [1967-II L.L.J. 883].

4. As against the above plea of the petitioner, Sri Rajarao Sindhia, learned Counsel for the 2nd respondent submitted as follows : The termination of service brought about even as a consequence of operation of Standing Order 8 would amount to retrenchment as defined under S. 2(oo) of the Act. As, admittedly, the provisions of S. 25F were not complied with, the termination of services was void. In support of this submission, learned Counsel relied on the judgment of the Supreme Court in State Bank of India. Sunder Money [1967-I L.L.J. 478]; Delhi Cloth & General Mills Ltd. v. Shambunath Mukherjee (1979) 55 FJR 210 and G. T. Lad. v. Chemical and Fibers of India [1979-I L.L.J. 257].

Alternatively, learned Counsel for respondent No. 2 submitted as follows : Even assuming that the employer was not responsible for the absence of the 2nd respondent on and after 21st June, 1977 as the 2nd respondent was not in a position to attend to duty, when he was acquitted by the order made by the Sessions Judge and he applied for reinstatement in terms of the 2nd part of Standing Order 8, the petitioner was not justified in rejecting the request of the 2nd respondent by merely stating that the explanation of the 2nd respondent was not satisfactory. When the facts disclosed in the letter of the petitioner dated 30th April, 1978, as also the fact which was, within the knowledge of the petitioner, namely, that the 2nd respondent, a prevented from attending to duty under circumstances beyond his control as he had been implicated in a criminal case and was under judicial custody as an under-trial prisoner, the petitioner should have taken back the 2nd respondent into its service.

5. In order to appreciate the first contention urged for the petitioner, it is necessary to set out the Standing Order 8(ii) of the Certified Standing Orders of the petitioner. It reads :

'8(ii). Absence without leave : any employee who absents himself for eight consecutive working days in any one month without leave, shall be deemed to have left the company's service without notice thereby terminating his contract of service

6. If he gives an explanation to the satisfaction of the management, the absence over and above the period of leave which may be to his credit and which will be adjusted against the said absence will be converted into leave without wages or D.A.'

Section 2(oo) of the Act reads thus :

''Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise that as a punishment inflicted by way of disciplinary action, but does not include -

(a) (422) Voluntary retirement of the workman, or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workmen concerned contains a stipulation in that behalf; or

(c) termination of the service of a workmen on the ground of continued ill-health.'

The definition of the word 'retrenchment' under S. 2(oo) of the Act is clear and unambiguous. According to the said provision, termination to service of a workman brought about in whatsoever manner, expect in the manner falling under cls. (a), (b) and (c) by the employer amounts to retrenchment. Even if the workmen and a temporary employee, a probationer or a badli, if he had put in one year of continuous service as defined in S. 25B of the Act, termination of service of such an employee by the employer also amount to retrenchment within the meaning of the expression under S. 2(oo) of the Act. (See Huchiah v. K.S.R.T.C. [1983-I L.L.J. 30], and K.S.R.T.C. v. Boraiah [1984-I L.L.J. 110]. But, in order that termination of service amounts to retrenchment, the termination of service must be by the employer because the definition says so. This position is placed beyond doubt by the Supreme Court in the case of Buckingham and Carnatic Co. (supra). In the case, the question for consideration was : Whether the termination of services of the workman of Binny Mill, who is also the petitioner in this case, during the period he was getting sickness benefit, which took place by operation of the same Standing Order, could be regarded as termination of service by the employer and whether such action was violative of S. 37 of the E.S.I. Act. The stand of the Binny Mill was that the services of Venkataiah - the employee concerned in the case - stood terminated by operation or Standing Order 8(ii) and, therefore, it was not termination of services of the employee by the employer and, consequently, there was no contravention of S. 73 of the E.S.I. Act. The, crucial question for consideration before the Supreme Court was whether the termination of services brought about by operation of the first part of Standing Order 8(ii) amounted to termination of service by the employer. The question was answered in the negative. The relevant portion of the judgment reads [at pp. 643 to 647 of 1963-II L.L.J. 638].

'...... Let us first examine Standing Order 8(ii) before proceeding any further.

The said standing order reads thus :

'Absence without leave : Any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the company's service without notice thereby terminating his contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.

7. Any employee leaving the company's service in this manner shall have no claim for re-employment in the mills.

8. But if the absence is proved to the satisfaction of the management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowances.

This standing order is a part of the certified standing orders which had been revised by an arbitration award between the parties in 1957. The Relevant clause clearly means that if an employee falls within the mischief of its first part, if follows that the defaulting employees has terminated his contract of service. The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workmen intended to terminate his contract of service. The certified standing orders represent the relevant terms and conditions of service in a statutory from and they are binding on the parties at least as much, if not more, as private contracts embodying similar term is and conditions of service. It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence 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. Abandonment or relinquishment of service is always a question of intention, and, normally, such as intention cannot be attributed to an employee without adequate evidence in that behalf. But, where parties agreed upon the terms and conditions of service and they are included in certified standing orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant terms itself. Therefore, the first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment.

9. The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and of his explanation is found to be satisfactory by the management, his absence will be converted into have without pay or dearness allowance. Now this clause is in substance a proviso to its first part. Before effect is give to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance. This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory be the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end. With the remaining part of the said standing order, we are not concerned in this appeal.

10. It is true that absence without leave for eight consecutive days is also treated as misconduct under Clause 13(f) of the standing orders. The said clause refers to the said absence and habitual absence without leave. In other words, the position under the standing orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant standing order. The fact that the same conduct is dealt with in two different standing orders cannot affect the applicability of Standing Order 8(ii) to the present case. It is not as if the appellant is bound to treat Venkatayya's absence as constitution misconduct under Standing Order 13(f) and proceed to hold an enquiry against him before terminating his services. Dismissal for misconduct as defined under Standing Order 13 may perhaps have different and more serious consequences from the termination of service resulting from the Standing Order 8(ii). However that may be, if Standing Order 8(ii) is applicable, it would be no answer to the applicant's case under Standing Order 8(ii) to say that Standing Order 13(f) is attracted....'

[At p. 645-646 of 1963-II L.L.J. 638]..... 'In considering the question about the true denotation of the word 'discharge' in S. 73(1), it is relevant to bear in mind the provisions of S. 85(d) of the Act s. 85(d) provides that if any person in contravention of S. 73 or any regulation dismisses, discharges, reduces or otherwise punishes an employee, he shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both. In other words, the contravention of S. 73(1) is made penal by S. 85(d), and so, it would not be reasonable to put the wide possible denotation on the word 'discharge' in S. 73(1). The word 'discharge' in S. 73(1) must, therefore, in the context, be takes to be a discharge which is the result of a decision of the employer embodied in an order passed by him. It may conceivably also include the case of a discharge where discharge is provided for a standing order. In such a case, it may be said the discharge flowing from the standing order is, in substance, discharge brought about by the employer within the assistance of the standing order. Even so, it cannot cover the case of abandonment of service by the employee which is inferred under Standing Order 8(ii). Therefore, we do not think the High Court was justified in taking the view that the termination of Venkatayya's services under Standing Order 8(ii) to which the appellant has given effect by refusing to take him back, contravenes the provisions of S. 73(1).'

11. From the pronouncement, it is clear that inference of abandonment service flowing from Standing Order 8(ii) is no termination of service of the workman concerned by the employer. From this it follows that it is no retrenchment under S. 2(oo) of the Act also as it is not termination of service by the employer. Similar question came up before the Supreme Court in the case of National Engineering Industries Ltd., : (1967)IILLJ883SC . That was a case which arose in the context of an allegation of violation of S. 33 of the Act. The stand of the Management in that case was that termination of services of the workmen concerned was brought about by operation of the Standing Order and, therefore, it could not be said that the management had terminated the service in violation of S. 33 and consequently no complaint under S. 33-A was maintainable. The wording of the standing order concerned in that case was, 'a workman who does not report for duty within eight days of the expiry of his leave loses his lien on the appointment.' The Supreme Court held that there was no difference between saying that the workmen's lien stands terminated and saying that the workmen would lose his appointment, and then applied the ratio of the judgment in Buckingham Mill's case and held that termination of service brought about by operation of the Standing Order did not amount to termination of the service by the employer. Relevant portion of the judgment reads (at pp. 54-55 of :

'....... We are, therefore, of opinion that Hanuman respondent's service stood automatically terminated for he did not appear for eight days after the expiry of his leave on 9th April, 1965. In this view of the matter, S. 33 cannot be said to have been contravened and S. 33-A will not apply.'

These two decisions fully support the contention of the petitioner that as the contract of service of the 2nd respondent on 30th June, 1977, stood terminated by operation of law and not by the petitioner, no finding could have been recorded by the Labour Court to the effect that the petitioner had terminated the services of the 2nd respondent on 30th June, 1977, and without justification.

12. Learned counsel for the 2nd respondent, relying on the decision of the Supreme Court in Sunder Money's case (supra), submitted that what was relevant for attracting the provisions of S. 2(oo) of the Act was 'fact of termination' and not 'the act of termination' by the employer. In the said case the Supreme Court was called upon to consider as to whether the termination of service brought about in terms of a clause specifying a tenure incorporated in the contract of employment amounted to retrenchment within the meaning of that expression in S. 2(oo) of the Act. The clause which was incorporated in the order of appointment concerned in that case read :

'(1) The appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the Bank's discretion;

(2) The employment, unless terminated earlier, will automatically cease at the expiry of the period, i.e., 18th November, 1972.'

Termination of service of the workman in that case was brought about as a result of the aforesaid condition incorporated in the order of appointment, after he had put in one year of continuous service as defined in S. 25-B of the Act. The contention of the workmen was that termination was void for violation of S. 25-F of the Act. The contention of the employer was that as the termination of service of the workmen took place in terms of the contract of employment, it did not amount to retrenchment as defined in S. 2(oo) of the Act. The Supreme Court repelling the contention said thus (at p. 482 of [1976-I L.L.J. 476].

'A break down of S. 2(oo) unmistakable expends the semantics of retrenchment. 'Termination..... for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employee's service been terminated Verbal appeal apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of a stipulated terms. To protect the weak against the strong, this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination, howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of S. 25-F and S. 2(oo). Without speculating on possibilities, we may agree that 'retrenchment' is no longer terra incognita, but area covered by an expansive definition. It means 'to end, conclude, cease.' In the present case, the employment ceased, concluded, ended on the expiration of nine days, automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from S. 25-F(b), is inferable from the proviso to S. 25-F(a). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract S. 25-F and automatic extinguishment of service by effluxion of time cannot be sufficient....'

(at p. 483 of [1976-I L.L.J. 476] 'Words of multiple import have to be winnowed judicially to suit the social philosophy of the statue. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a competitive order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision.'

13. From this decision, it is clear that whether the termination of service of a workmen after one year of continuous service as defined in S. 25-B without complying with S. 25-F is by an order of the employer or is brought about as a result of a clause incorporated by the employer in the appointment order itself, it makes no difference as in both cases it is the act of the employer which cause the termination of service. In this context, the Supreme Court pointed out that if the period during which the workman was to be employed were to be incorporated by the employer in the order of appointment, at best he might get rid of requirement of giving one month's notice under S. 25-F(a) of the Act, but he could not get rid of the mandatory requirement of S. 25-F(b) of the Act. The Supreme Court also observed that if any other view was taken, the very purpose of S. 25-F which was intended to give protection to weaker section, viz, the workmen, might be defeated by the employers by incorporating the period of employment in the order of appointment itself of every workmen so that when the appointment comes to an end, he is absolved from complying with S. 25-F of the Act as also the condition precedent, namely, intimating the Government about he retrenchment as required under S. 25-F taking permission for retrenchment as provided under S. 25-N of the Act.

14. Learned counsel for the 2nd respondent also relied on the judgment of the Supreme Court in G. T. Lad's case (supra). In that case, the employer took the stand the employee concerned who remained absent from duty during the strike period, had abandoned his service and, therefore, it was no retrenchment by the employer under S. 2(oo) of the Act. The Supreme Court held that abandonment of service was a question of fact and it depended on the fact as to whether the workman concerned had intended to give up employment and that the mere fact that he remained absent from duty was not conclusive of his intention to abandon the employment and if an employer refused to allow the employee to join duty after has absence for a few days standing that he had abandoned the service through the employee had no such intentions, it amounts to retrenchment.

15. The contention of the petitioner in this case, however, is that an inference of termination of the contract of service by the 2nd respondent was brought about with effect from 30th June, 1977, by his remaining absence from duty without leave consecutively for eight days and not by the act of the employer as was the position in Sundara Money's case (supra) and in G. T. Lad's case (supra). This contention is well founded in view of the ratio of the judgment of the Supreme Court in Buckingham Mill's case (supra), and National Engineering Industries' case, (supra). It is pertinent to note that retrenchment in violation of S. 25-F is a punishable offence under S. 31(2). Therefore, if it were to be held that the consequence following from the first part of the Standing Order 8(ii) amounts to retrenchment the employer would be punishable for the consequence brought about an employee upon himself or for which employer is in no way responsible. Such a construction is unreasonable. (See p. 42 of the report in Buckingham Mills' case (supra) extracted earlier.

16. It is relevant to note that inclusion of a provision like Standing Order 8(ii) in the Certified Standing Orders does not depend upon the violation of the employer like incorporating a condition for termination of service in the order of appointment itself which a workman would have to accept helplessly or the stand of an employer that a workman who had remained absent without leave for a few days had abandoned the service. The Standing Order has to be be submitted to the Certifying Officer under the Industrial Employment Standing Orders Act any and has to be certified by the officer only after satisfying that every clause in the standing order is just and fair. It is after such scrutiny and consideration that the Standing Order has been certified.

17. A standing order like Standing Order 8(ii) is found incorporated in most of the standing orders. Obviously it appears to be a measure to prevent unauthorised absence of workmen for longer periods. Learned counsel for the petitioner submitted that without such a provision, unauthorised absence for longer period s would taken place in a large scale and it would adversely affect the working of the industries and more so in the textile industries in which the workers during some seasons would be in a position to earn better by doing piece work elsewhere. Whatever that may be, the fact remains that Standing Order 8(ii) is a statutory condition of service.

18. To put it in a nutshell :

(i) A termination of service of a workman brought about by an act or at the instance of an employer for any reason whatsoever in any manner and however ingeniously, is retrenchment as defined in S. 2(oo) of the Act, is the ratio in Sundara Money's case [1976-I L.L.J. 478] and G. T. Lad's case [1979-I L.L.J. 257], and and

(ii) that a termination of service of a workman brought about consequent on an inference flowing from the absence without leave of the concerned workman for specified number of days flowing from a statutory provision regulating the conditions of service is no termination of service by the employer, is the ratio in Buckingham Mill's case (supra) and National Engineering Industries' case (supra), and from this it follows that such a termination is no retrenchment as defined in S. 2(oo) of the Act.

19. Therefore, in the present case, the Labour Court could not have recorded a finding that the management was not justified in terminating the services of the second respondent w.e.f. 30th June, 1977, when, neither in fact nor in law, it could be held that the petitioner had terminated the services of the 2nd respondent as the termination was brought about by operation of law, i.e., Standing Order 8(ii). The Labour Court failed to appreciate when admittedly the 2nd respondent was in judicial custody from 23 June, 1977, and for a few months thereafter, how it could be held that the petitioner terminated the service of the second respondent illegally with effect from 30th June, 1977, and how the petitioner could be found fault with, for not taking the second respondent on duty from 30th June, 1977. Learned counsel for the respondent also could not make out as to how in such a situation a finding that the petitioner terminated the service of the second respondent could be recorded and he could be compelled to pay salary for the period when the second respondent was in jail as an under-trial prisoner. The award of the Labour Court is, therefore, liable to be set aside.

20. However, I am of the view, the second respondent is entitled to succeed on the alternative contention urged by his learned counsel, Sri Raja Rao Sindhia. As could be seen from the contents of the Standing Order 8(ii) extracted earlier, though the first part created a legal fiction, namely, that the services of a workman who remained unauthorisedly absent for eight consecutive working days should be deemed to have terminated his contract of service, the second part enables the workman to apply to the management to take him back duty by showing sufficient cause for his absence. It may also be seen that there is no period fixed in the standing order within which the workman is required to apply for such reinstatement. Obviously this clause has been added because in many cases under circumstances beyond the control of the workman and for no fault of his, like illness, meeting with an accident, or on account of having been implicated in a criminal case, as has happened in the case of the second respondent, a workmen might be forced to remain absent for eight days or more without even being in a position to apply for leave and thereby come under the operation of the first part of Standing Order 8(ii). In such cases, the second part comes to his rescue. Even after considerable lapse of time, he could apply for reinstatement. Therefore, when such an application is made, the employer is under a duty to consider as to whether the workman concerned had reasonable excuse for remaining absence and whether his absence was under circumstances beyond his control and for no fault of his. If it is found that absence was bona fide and for no fault of the workman, he has to be relived from the consequence of the first part of Standing Order 8(ii).

21. In the present case, on 21st June, 1977, the workman was taken into custody, by the Police. He was kept under judicial custody till 14th July, 1977, on which date he was released on bail. Even thereafter, as he had to undergo trial on serious charges before the Sessions Court, it was impracticable for him to attend to his duties regularly even if he was taken back to duty. There is, however, no dispute that he was honorably acquitted on 24th April, 1978. On 30th April, 1978, itself, he made a representation requesting the petitioner to take him back to duty. But the petitioner rejected his request stating that the explanation was not satisfactory. Had the workman been convicted and sentence to undergo imprisonment for any period and after undergoing the sentence, the workman had applied under the second part of Standing Order 8(ii), the petitioner would have been justified in rejecting the representation, as the absence would have been as consequence of a criminal offence committed by the workman. But, in the present case, it is established beyond doubt that the second respondent had to remain absent as he had been implicated in a criminal case and that was a circumstance beyond his control and the situation was not his own creation. He was acquitted honorably. This shows that for no fault of his, the workman was prevented from attending to his duties. Having regard to the object and purpose of the second part of the standing order, in fairness, the second respondent should have been reinstated. Therefore, it was wholly unreasonable for the petitioners not to accede to the request of the second respondent. The refusal by the petitioner to reinstate the 2nd respondent resulted in great hardship and misery to the second respondent in addition to what he had already suffered on account of his misfortune. For these reasons, I hold that though the first point of the reference could not have been answered in favour of the second respondent, on the alternative plea, the second respondent was entitled to the relief of reinstatement on and after the date when he made a request after his acquittal, with full back wages.

22. Learned counsel for the petitioner, however, contended that the order under reference was itself invalid as there was no order of termination of service made by the petitioner, terminating the services of the second respondent. I do not find any substance in this contention. It was the plea of the second respondent that his service has been terminated though the plea of the petitioner was that it had not terminated the service of the second respondent. In such a situation, it was open to the Government to refer the point of dispute for adjudication. Therefore, even if the first point as formulated in the reference could not be answered in favour of the second respondent, the alternative plea could be considered as a matter incidental thereto in view of S. 10(4) of the Act. (See Hotel Imperial v. Hotel Workers' Union, [1959-II L.L.J. 544]. I have come to the conclusion that the second respondent is entitled to the relief on the alternative plea to the extent indicated earlier.

25. In the result, I make the following order :

(i) The writ petition is allowed.

(ii) The impugned award is set aside. In its place, there shall be an order directing reinstatement of the second respondent into the service of the petitioner with effect from 1st July, 1978. With full back wages and other consequential benefits. The period in between 21st June, 1977, and 1st July, 1978, shall be adjusted towards leave, if any, to the credit of the second respondent and if not, shall be treated as leave without allowance.


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