R.C. Patnaik, J.
1. In this writ application a former employee of the Utkal Ayurvedic Co-operative Pharmacy Limited has approached the certiorari jurisdiction of this Court for the quashing of an order passed by the opposite patty No, 1 terminating the services of the petitioner with effect from 8.4.76 as voluntary abandonment of service and of the award passed by the Labour Court upon reference and seeks a mandamus to the opposite party No. 1 to restore him to service and for payment of full back wages and other benefits.
2. The facts in a nutshell are the petitioner joined service under opposite party No. 1 as a Clerk on 1. 7. 60. From time to time he was posted as and held various posts like Accounts Clerk, Cashier, Propaganda Van inharge, Package Clerk, Despatch Clerk and Salesman etc. While serving at Angul he applied on 19.12.75 for leave from 9.1.76 to 12.1.76 to perform his mother's sradha which was falling on 10.1.76 and to appear in a proceeding before the Consolidation Officer. His prayer for leave was refused. He made a fresh prayer on 26.12.75. When he did not receive any reply, he left Angul on 9.1.76 sending an intimation to the management telegraphically. While he was at Berhampur, he was taken ill and sought for extension of leave from time to time. The management by their letter dated 4. 2, 76 sanctioned his leave from 9.1.76 to 20.1.76 and asked him to join as there was no leave due to him. The petitioner, however, sought one month's leave from 22.1.76 on the ground of his illness. On 26.2.76 the management asked him to join his post at Angul within three days. The petitioner has alleged that his prayer for extension which was on the ground of his illness, supported by medical certificate, was not duly considered by the management. By order dated 5.3.76 the petitioner was transferred to Bhubaneswar and was asked to hand over charge to one Arjun Muni on 10.3.76. He again applied, for leave. On 11.3.76 he was required to hand over charge to Arjun Murfi. In compliance with the said direction, the petitioner went to Angul and handed over charge to Arjun Muni on 12.3.76 and was back at Berhampur. While at Berhampur he received the order dated 8. 4. 76 (Annexnre-1) passed by the Administrator of opposite party No. 1 to the effect that his absence from 21.1.76 to 7.4.76 was treated as unauthorised absence from duty on loss of pay and with effect from 8. 4, 76 he was treated to have voluntarily abandoned service. The petitioner's name was removed from the register. The petitioner has alleged that the order as per Annexure-1 violated the principles of natural justice and was retrenchment of the petitioner from service. The requirements of Section 25F of the Industrial Disputes Act,. 1947 (for short the 'Act') not having been complied with, the order was also invalid. It has been alleged that no disciplinary proceeding was started, no charges were framed or enquiry was made.
3. Thereafter the petitioner approached the management to recall the order. All his entreaties having been of no avail, he approached the State of Orissa for a reference and the following question was referred for adjudication :
'Whether the termination of services of Sri Brajabandhu Panigrahi, by the management of M/s. Utkal Ayurvedic Co-operative Pharmacy Ltd., Aska, with effect from 8. 4. 76 is legal and/or justified? If not, to what relief he is entitled ?'
4. The petitioner alleged before the tribunal that he was subjected to victimisation and unfair labour practice as he was the Secretary of the Union. His prayer for leave was supported by unimpeachable medical certificate. No enquiry having been made the order (Annexure-1) was liable to be struck down. The management based their case on Clause 21 of the Subsidiary Rules to the effect that if an employee remained absent for more than 10 days, his name would be removed from the Muster Roll treating his absence as voluntary abandonment from service. Annexure-1 was passed, according to the management, under the said provision. No oral evidence was adduced by the management before the Labour Court. Reliance was placed on certain documents. The petitioner, however, examined himself and placed documentary evidence for the consideration of the Labour Court. The petitioner contended before the Labour Court that the order Annexure-1 was violative of the principles of natural justice. There was no subsidiary rule as contended for. Assuming there was such a subsidiary rule that being unilateral was not binding on the petitioner. Lastly, assuming that the case came under the subsidiary rule and the rule governed the petitioner, the order amounted to retrenchment and was hit by Section 25F (a)&(b) of the Act. The Labour Court obviously relied upon Standing Order No. 36, though there is no specific finding to that effect but the trend of its decision shows it. Standing Order No. 36 provided that if an employee remained absent for 10 days after exhausting all types of leave for his credit, he would lose service. The Labour Court held that the petitioner had no justifiable reasons to remain absent from duty and had abandoned his service. The reference was answered in favour of the management and against the petitioner.
5. In the return opposite party No. 1 relied upon the Standing Order and the conduct of the petitioner to show that the impugned order, Annexure-1, was valid. It took the plea that the petitioner was applying for leave on false pretext and inasmuch as there was no leave due to his credit, action was taken under Standing Order No. 36. The action was not violative of Section 25F (a) & (b) of the Act.
6. The question over which the parties have joined issue is : Whether the order amounts to an order of retrenchment and is, therefore, violative of Section 25F (a) & (b) of the Industrial Disputes Act ?
Mr. Ratho, the learned counsel for the petitioner, contended that the impugned order bringing an end to petitioner's service on the ground of voluntary abandonment of service by the petitioner nevertheless amounted to retrenchment as defined in Section 2(oo) attracting Section 25F of the Act. As admittedly the requirement of Section 25F were not complied with, the order was invalid.
Mr. A B. Mishra, the learned counsel for the management-opposite party No. 1, sought to repel the attack submitting that the principle canvassed by Mr. Ratho had no application to the facts of the case in as much as the impugned order was passed on Standing Order No. 36. He took us through the facts of the case to show the abduracy and indisciplined conduct of the petitioner. He submitted that compliance with the Standing Order satisfied the requirements of Section 25F.
8. Section 2(oo) defines retrenchment as under :
'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) 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 workman concerned contains a stipulation in that behalf ; or
(c) termination of the service of a workman on the ground of continued illhealth'.
9. In State Bank of India v. N. S. Money, AIR 1976 S. C. 1111, Krishna Iyer, J., observed :
'...A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. 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 ...'
In Santosh Gupta v. State Bank of Patiala, AIR 1980 S. C. 1219, it was observed :
'...There cannot be any doubt that the expression 'termination of service for any reason whatsoever' now covers every link of termination of service except those not expressly provided for by other provisions of the Act such as Section 25FF and Section 25FFF.'
In Delhi Cloth and General Mills v. Sambhunath Mukherji, AIR 1978 S.C. 8, it was observed that striking off the name of the workman from the rolls by the management was termination of his service which was retrenchment within the meaning of Section 2(oo) of the Act. The Standing Order in that case was to the following-effect :
'If any workman absents for more than eight consecutive days his services shall be terminated and shall be treated having left the service without notice.'
In L. Robert D' Souza v. Executive Engineer, AIR 1982 SC 854, an attempt was made for reconsideration of the decision in Money's case, in view of the Constitution Bench decision in Hariprasad Shivshanker Shukla v. A. D. Divelkar, AIR 1957, S. C. 121, Desai, J., refused the prayer- stating that the Supreme Court had taken the consistent view in a series of decisions that if termination of the service of a workman was brought about for any reason whatsoever, it would be retrenchment except when the case fell within any of the excepted categories, i. e. , (i) termination by way of punishment inflicted pursuant to disciplinary action ; (ii.) voluntary retirement of the workman ; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contained a stipulation in that behalf ; or (iv) termination of service on the ground of continued illhealth. Once the case did not fall in any of the excepted categories the termination of service even if it was according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of the expression in Section 2(oo).
There is an-opposite observation which is relevant for our purpose and it reads as follows :
'...Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and enquiry or at any rate without complying with the minimum principle of natural justice......'
In Gammon India Limited v. Niranjan Dass, (1984)1 SCC 509 Money's case was also followed.
10. It is not the case of opposite patty No. 1 that the termination in the instant case was inflicted by way of disciplinary action. If such a stand was taken, the impugned order would be ab initio void for violation of the principles of natural justice as admittedly no disciplinary action was initiated nor any enquiry was held. It is also not the case of opposite party No. 1 that the petitioner voluntarily retired or reaching. the age of superannuation. Nor was the termination on the ground of continued illhealth. The case does not come within any of the excepted categories. The termination is, therefore, for a reason other than those covered by Clauses (a), (b) and (c) of Section 2(oo) of the Act. The impugned order is, therefore, an order of termination amounting to retrenchment. Admittedly, the pre-conditions contained in Section 25F were not complied with. The retrenchment, therefore, is invalid and inoperative. The order does not bring about a cessation of service.
11. The tribunal has not been alive to the aspects discussed above though the petitioner raised the questions specifically.
We, therefore, quash the award of the tribunal, Annexure-2, and the order impugned, Annexure-1.
12. The next question is what relief would be granted to the petitioner. The petitioner was 56 years of age when the writ application was filed. It was submitted at the time of hearing that he reached the age of superannuation during the pendency of the writ application. In view of our conclusion quashing Annexures-1 and 2, the petitioner would be entitled to be reinstated in service and continue until he reached the age of superannuation. Since he has reached the age of superannuation, physical reinstatement in service is no more possible. Hence, we direct that he would only be entitled to full back wages including revised/ increased wages or salary, (if during the period there was revision of pay scale or annual increment fell due) and all other benefits. The back wages/salary with all benefits would be calculated by the opposite party No. 1 and paid to the petitioner within three months hence. If the amount be not paid within the time fixed, the petitioner shall be entitled to 12 per cent interest thereon till realisation.
13. The writ application is accordingly allowed. Appropriate writs do issue. The petitioner shall be entitled to costs. Hearing fee is assessed at Rs. 200/-
D.P. Mohapatra, J.
14. I agree.