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Orissa Road Transport Company Limited Vs. Lalmohan Majhi and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1974)IILLJ49Ori
AppellantOrissa Road Transport Company Limited
RespondentLalmohan Majhi and anr.
Cases ReferredTilokcliand Motichand and Ors. v. R.B. Munshi
Excerpt:
.....action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - according to the tribunal, the workman had, however, failed to establish that he had applied for leave for the period beginning with 16-2-1969. notwithstanding these findings the tribunal has been of the view that while passing the order of termination, the employer has taken all the instances of absence into consideration and, therefore, order is bad. but we are not in a position to hold that the state government is a necessary party to the certiorari proceeding before this court, for the award is only the consequence is well-known (sic). for the purpose of annulling the..........award was passed on 3rd of may, 1971, and it was published in the gazette on 6th of may, 1971. the writ application before this court was filed on 27-10-1971. it is true, in some of the cases before this court, the period of ninety days has been taken into consideration as the appropriate time for filing of an application for a writ of certiorari. there is no period of limitation as such and the test is always one of laches. we may refer here to some of the decisions on the point. (see madan mohan misra v. state of orissa and ors. (1972)1 c.w.r. 829; and orissa road transport company ltd.. v. maguni kar and ors. (1973) 39 c.l.t. 741. there is useful discussion on the point also in the judgment of the supreme court in the case of tilokcliand motichand and ors. v. r.b. munshi, commissioner.....
Judgment:

R.N. Misra, J.

1. This is an application for a writ of certiorari directed against the award of the Industrial Tribunal, Orissa dated 30th of March, 1971.

2. The petitioner is the employer and opposite party No. 1 was employed formerly as an assistant under the company. By order dated 5th of August, 1969, the general manager of the petitioner-company terminated the services of the opposite part No. 1 with immediate effect. Thereupon opposite party No. 1 applied under Section 33A of the Industrial Disputes Act to the Tribunal claiming that the order of termination was illegal, and without obtaining previous approval or permission of the Tribunal it could not have been made, in view of the fact that Industrial Dispute Case No. 40 of 1966 between the management and the workmen relating to introduction of gratuity scheme was pending adjudication, It was further alleged that the termination was an act of victimisation as opposite party No. 1 was a member of the union executive.

3. The petitioner as opposite party before the Tribunal took the stand that the workman having absented himself from duty for more than seven consecutive days had forfeited his service by the automatic process contemplated in the standing orders and it is not a case where there was any victimisation or termination of service as such.

4. Evidence was led before the Tribunal and it came to find that there was no evidence of any victimisation. There were three instances when the petitioner had remained absent. The first one was from 1-12-1967 to 15-12-1967; the next was the period from 16-2-68 to 29-2-68 and the third instance was from 16-2.69 till 31-3-69. It is the third question (sic) where the impugned action was taken. The workman's stand was that he had taken leave from 1st of February, 1969, and had applied for extension. The Tribunal found that in regard to the first half, i.e., upto 15-2-1969, an application for leave had been received. According to the Tribunal, the workman had, however, failed to establish that he had applied for leave for the period beginning with 16-2-1969. Notwithstanding these findings the Tribunal has been of the view that while passing the order of termination, the employer has taken all the instances of absence into consideration and, therefore, order is bad.

5. The proviso to Standing Order No. 13(6) of the company makes the following provision ;

Provided, however, that an employee who is absent from duty without leave for a period exceeding seven consecutive days shall be deemed to have left his employment without notice....

Reliance is placed on a decision of the Supreme Court in the case of National Engineering Industries Limited, Jaipur v. Hanuman 1967-II L.L.J. 883 : A.I.R. 1968 S. C. 33, in support of the proposition that where there is absence from duty for a period exceeding seven consecutive days, there is automatic termination of the employment. The consequence of the delinquency is that nothing more has to be done to dissolve the relationship of employer and employee.

6. Counsel for the workman does not dispute that would be the necessary consequence of absence for the requisite period. It is also not disputed that the Tribunal has not taken that aspect of the legal position arising from its own finding of fact in the back-ground of the standing order into consideration.

7. There was no material before the Tribunal to justify its conclusion that the order of termination was the outcome of a consideration of the total performance of the workman, namely, his past conduct in remaining absent without leave now and then. The impugned order of termination makes no reference to past conduct. There is no material before us to hold that the employer had taken that stand even before the Tribunal. The witness for the management never stated so. In that view of the matter, the conclusion of the Tribunal seems to be one without any evidence and must, therefore, be taken to be vitiated.

8. Finding difficulty on merit, learned Counsel for the workman had emphatically contended that this writ petition was liable to be rejected because the State Government was not impleaded and the application itself must be also thrown out as being barred by limitation. We had not examined these two contentions of learned Counsel of the opposite party preliminarily because in our view they were not to be sustained. We shall, however, now deal with them.

9. An application had been made by the workman under Section 33A of the Act directly to the Tribunal. It is true, after the award is received from the Tribunal, it is published by the State Government. But we are not in a position to hold that the State Government is a necessary party to the certiorari proceeding before this Court, for the award is only the consequence is well-known (sic). For the purpose of annulling the award, the State Government is not a necessary party. The first ground raised, therefore, must fail.

10. The award was passed on 3rd of May, 1971, and it was published in the Gazette on 6th of May, 1971. The writ application before this Court was filed on 27-10-1971. It is true, in some of the cases before this Court, the period of ninety days has been taken into consideration as the appropriate time for filing of an application for a writ of certiorari. There is no period of limitation as such and the test is always one of laches. We may refer here to some of the decisions on the point. (See Madan Mohan Misra v. State of Orissa and Ors. (1972)1 C.W.R. 829; and Orissa Road Transport Company Ltd.. v. Maguni Kar and Ors. (1973) 39 C.L.T. 741. There is useful discussion on the point also in the judgment of the Supreme Court in the case of Tilokcliand Motichand and Ors. v. R.B. Munshi, Commissioner of Sales Tax, Bombay and Anr. : [1969]2SCR824 . Keeping the law in view as indicated in this case, we are not in a position to hold that the present application can be thrown out as being delayed.

11. We accordingly allow the writ petition issue a writ of certiorari quashing the order of the Tribunal. We make no order as to costs.

K.B. Panda, J.

12. I agree.


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