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Delhi Cloth and General Mills Co. Ltd. Vs. Shambhu Nath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 66 of 1969
Judge
Reported inILR1970Delhi392
ActsIndustrial Disputes Act, 1947 - Sections 2A
AppellantDelhi Cloth and General Mills Co. Ltd.
RespondentShambhu Nath Mukherjee and ors.
Advocates: R. Dayal and; A.K. Jain, Advs
Cases ReferredNew Delhi v. S. N. Kaul
Excerpt:
.....orders of the employers company provides: 'if any workman absents for more than eight consecutive days, his services shall be terminated and shall be treated as having left the service without notice.':;that there is no warrant for adding the word 'working' between the words 'consecutive' and 'days' as used in rule 27 (e). the plain meaning of the rule is that once the work-man starts remaining absent and his absence continues for a period of more than eight days without a break the consequences mentioned in the rule will follow. the period of more than eight consecutive days obviously means more than eight calendar days. it is wholly immaterial whether in between the mill is closed on some day or the day happens to be a day of rest for the work-men. if the intention of the rule was to..........of his leave. but what happens if he does not returnwithin eight days say, nine days or ten days rule 17 will obviouslynot apply to such a case and on the ratio of the decision in thenational engineering industries limited, his services wouldautomatically stand terminated. in what way is the present case different in one case the work-man remains absent formore than eight consecutive days while in the other case thework-man over-stays his leave and is thus absent for more thaneight days. are we to hold that in one case the service of thework-man shall not terminate automatically and it will be necessary to pass a positive order terminating his services while inthe other case no such order will be necessary and there will beautomatic termination of his employment.(28) the next.....
Judgment:

Hardayal Hardy, J.

(1) This is an appeal under clause 10 ofthe Letters Patent from the judgment of S. Rangarajan J. dated 30/05/1969 dismissing the appellant's petition under Article 226 of the Constitution directed against an award made by theLabour Court.

(2) The material facts are not in dispute. The appellant is apublic limited company. It owns an industrial unit called theSwatantra Bharat Mills at Delhi. Shambhu Math Mukherjiwho will hereafter be referred to as respondent was a work-manemployed in the said mills. He joined as a Store Coolie in 1951,became Fitter Helper after six months and was promoted afterabout a year as a Motion Setter. In October 1964, the appellant-company introduced a scheme for re-organisation of the WeavingSection of the mills whereby in pursuance of an alleged agreementbetween the work-men and the management, provision wasmade for the appointment of a new category of work-men calledAssistant Line Fixers (Assistants Grade 1) and for the abolitionof the post of Motion Setters. Under that scheme, the respondentalong with some other work-men was placed under training forsix months on probation with effect from 1/10/1964. Hiswork was however not found satisfactory and the period of probation was thereforee extended by another three months with effectfrom 1/04/1965. Even after the extended period, his workand conduct were not found up to the mark and as such he couldnot be appointed as Assistant Line Fixer.

(3) The post of Motion Setter having thus been abolished andthe respondent not having been found eligible for appointmentas Line Fixer, the management offered to him the post of Fitteron the same terms and conditions and emoluments as wereapplicable to him in the post of Motion Setter. It is howevernot disputed that the post of Fitter was otherwise lower thanthat of a Motion Setter. By letter dated 31-7-1965 the respondentwas informed that if he did not agree to work as a Fitter onthe terms and conditions offered to him he would have to beretrenched as the post held by him had been abolished.

(4) On 16/08/1965, the respondent submitted a reply inwriting indicating that he did not agree to work as a Fitter andasked for further extension of period of training by six months.The case of the respondent was that he kept on reporting for dulybut was prevented by the Shift in charge from working. Theappellant on the other hand contended that the respondentdid not report for work at all and remained absent from 16thAugust onwards till he wrote again to the management on 4/01/1966 requesting that his letter of 16/08/1965 might be ignored. In reply the management by their letterdated 19/01/1966 informed the respondent that his namehad been automatically struck off the rolls under the provisions of the Standing Orders with effect from 24/08/1965 onaccount of his continued absence from duty without any intimation.

(5) Eventually by a notification dated 21/11/1966the Leiutenant Governor Union Territory of Delhi referred tothe Labour Court for adjudication the industrial dispute relatingto the termination of the respondent's service.

(6) The Labour Court by its award dated 21/12/1967ordered the respondent to be reinstated with continuity of pastservice and full back wages coupled with a direction that if themanagement wanted to revert or retrench him they should do soin accordance with the rules and regulations applicable to hiscase after taking proper proceedings according to rules.

(7) The main controversy before the Labour Court and alsobefore the learned Single Judge centered round the meaning andscope of the relevant provision in the Standing Orders of thecompany on which reliance was placed by the appellant in supportof its case. The said provision is contained in rule 27(c) of theappellant company's Standing Orders which were in force at thematerial time. The rule reads :-

'IF any workman absents for more than eight consecutive days his services shall be terminated and shallbe treated as having left the service without notice.'

(8) The position taken by the management was that the respondent'sservice automatically terminated on 24/08/1965.

(9) The Labour Court held that notwithstanding the respondent'sdenial, even if the management's construction of the rule wereto be accepted, the number of days on which the respondentcould be said to have been actually absent would only be sixworking days from 16th to 23/08/1965. The LabourCourt further held that absence under rule 27(c) of the StandingOrders would mean absence on eight 'consecutive working days'and since no attendance would be required on weekly off daysor on days on which the mill would be closed the respondentcould not be treated as absent for the purpose of rule 27(c) of theStanding Orders so as to attract the consequence of automatictermination of his services under that rule.

(10) The Labour Court's view that the expression 'eight consecutive days' means 'eight consecutive working days andnot merely calendar days' has not been accepted by the learnedSingle Judge who held that on that construction of the rule theremight never be eight consecutive days in a week; for the simplereason that there would always be at least one weekly holiday.We shall advert to this matter a little later as before we do so,a few other contentions raised before us by the counsel for theappellant may be mentioned.

(11) The first contention raised by the learned counsel is thaton a proper construction of rule 27(c) of the Standing Ordersthere was automatic termination of the services of the respondentand there was no need for any positive order being passed by themanagement in that behalf. Secondly, even if a positive orderwas necessary as was held by the learned Single Judge and sincethere was no such order in this case the dispute could not havebeen validly referred to the Labour Court. Thirdly, the learnedSingle Judge should not have gone into the question as to whetherthe re-organisation scheme was binding on the respondent becausethe point involved a disputed question of fact and was raisedfor the first time in the counter-affidavit filed by the respondentin this Court. Fourthly, in so far as Section 10 of the IndustrialDisputes Act, 1947 empowers the appropriate Government torefer to a Board, Tribunal or a Court of inquiry, including aLabour Court, an industrial dispute as envisaged in Section 2A of the Act, the section infringes the provisions of Article 14 and is thereforee ultra virus the Constitution.

(12) We shall first take up the contention whether the respondentwas absent from duty for more than eight consecutive days.Neither the Labour Court nor the learned Single Judge has givena definite finding about the number of days on which the respondent was absent. The Labour Court however appears tohave proceeded on the assumption that the respondent wasabsent from 16th to 23/08/1965 but found that 18th washis weekly off day while on 20th the mill was closed. The respondent was thereforee held to have remained absent on six daysfrom 16th to 23rd and that precluded the application of rule27(c) to the case. Learned Single Judge accepted the LabourCourt's finding about the respondent having remained absentbetween 16th and 23rd but he did not agree with the LabourCourt that that would not make eight consecutive days of absencebecause the expression 'consecutive days' according to himdid not mean 'Consecutive working days.'

(13) We are in agreement with the learned Single Judge that thereis no warrant for adding the word 'working' between the words'consecutive' and 'days' as used in rule 27(c). The plainmeaning of the rule in our opinion, is that once the work-manstarts remaining absent and his absence continues for a periodof more than eight days without a break, the consequencesmentioned in the rule will follow. The period of more thaneight consecutive days obviously means more than eight calendardays. It is wholly immaterial whether in between, the mill isclosed on some day or the day happens to be a day of rest forthe work-man. If the intention of the rule was to relate theperiod of absence to the period during which the work-man isrequired to work in the mill nothing could have been easier thanto add the word 'working' between the words 'consecutive'and 'days'.

(14) It is in accepted principle of construction that it is not permissible to add to or read in a statute, deed or rule any words thatare not there unless there is clear reason for it within the fourcorners of the statute, rule or deed to be considered. It willhowever be noticed that the requirement of rule 27(c) is absencefor 'more than eight consecutive days' which necessarily impliesnine days at least. In this case the Labour Court as well as thelearned Single Judge have held that the respondent was absentfor eight days only i.e., from 16th to 23rd August. So even onthe interpretation placed on the rule by the learned Single Judgethe period of absence would fall short by one day. It was contended by the learned counsel for the appellant that in the writpetition it was clearly stated that the respondent began to absenthimself from 16/08/1965 onwards and did not join dutyat all. This clearly showed that he was absent for more than'eight consecutive days' as required by the rule.

(15) It is true that the respondent did not join duty after 1 6/08/1965 and it was on 4/01/1966 only that he wroteto the company that his letter of 16th August should beignored.It is however not open to the appellant to take advantage of theabsence of the respondent for any period beyond 23/08/1965 because it was appellant's own case in the petition that onaccount of the respondent's absence his name was automaticallystruck off the rolls under the provisions of the Standing Orderswith effect from 24/08/1965. Once the respondent's namestood struck off the rolls of the mill any further absence on hispart beyond that day was of no consequence. Even if the respondent had attended the mill to report for duty after 24th Augusthe would probably have been met with the reply that he had ceasedto be on the rolls of the mill and had thereforee no right to reportlor duty.

(16) We may now turn to the other two contentions of the appellant. In order to appreciate the point, it is necessary to examinethe relevant provisions contained in the company's StandingOrders. According to clause (a) of rule 26, the employmentof any permanent work-man or work-men can be terminatedby ten day's notice or by payment of ten days' wages in lieu ofnotice under the order of the manager. The rule however statesthat the reasons for the termination of service shall be recordedin writing and shall be communicated to the work-man or workmen.

(17) Clause (a) of rule 27 is a corresponding rule which gives thesame right of leaving the company's service to the work-manand states that a work-man desirous of leaving service shall giveten day's notice in writing to the head of the department concerned. Under clause (b) of that rule such work-man may berelieved of his appointment and with mutual consent, even beforethe expiry of the period of notice. Then comes clause (c) whichhas already been re-produced above and with the constructionof which we are directly concerned in this case. Clause (d) laysdown that if any permanent work-man leaves service withoutnotice he shall, subject to the provisions of Payment of WagesAct, be liable to deduction of wages or refund of wages for theperiod of notice (i.e., ten days) or for the period for which thenotice falls short of ten days.

(18) An examination of these rules makes it plain that in thecase of a permanent work-man whose services are sought to beterminated by the company it is not only necessary that he shouldbe given under the orders of the manager, ten days' notice or tendays' wages in lieu of notice, but the reasons for terminationof his services have also to be recorded in writing and communicated to the work-roan concerned. On the other hand, if thework-man himself desires to leave the company's service he hasto give ten days' notice in writing to the head of the departmentconcerned and he may with his consent be relieved of his appointment at any time after he has given notice even before the expiryof that period. It will however be noticed that the finale in bothcases is the outcome of a positive action taken by the management. But when we come to clause (c) of rule 27 its only requirement appears to us to be that the work-man should be absent formore than eight consecutive days and when that happens thenecessary consequence of termination of his service follows.

(19) The difficulty in the construction of the rule however ariseson account of the un-happy use of the expression 'shall be terminated' which has given rise to the argument that the absenceenvisaged in the rule is merely an occasion or cause for the exerciseof management's power to terminate the work-man's serviceswhich must be exercised by their passing an order to that effect.

(20) The argument has found favor with the learned SingleJudge.

(21) We regret we cannot share the learned Single Judge's view ofrule 27(c). It is no doubt true that the rule is inartisticallyworded but its meaning seems to us to be quite clear. Theexpression 'shall be terminated' does not stand alone; it isimmediately followed by the words 'and shall be treated ashaving left the service without notice' obviously means thathis services are automatically terminated on the happening of thecontingency otherwise there can be no question of his being'treated as having left the service without notice'. The use ofthe expression 'his services shall be terminated' does not necessarily denote that a positive order is required to be passed bythe management. If that were so, the further expression 'andshall be treated as having left the service without notice' will becompletely redundant.

(22) The case, in our opinion, is fully covered by the decisionof the Supreme Court in National Engineering Industries Limitedv. Hanuman : (1967)IILLJ883SC . In that case the Supreme Courtwas concerned with the construction of a standing order whichprovided that 'a work-man who does not report for duty withineight days of the expiry of the leave loses his lien on the appointment.' Wanchoo CJ. who spoke for himself and Mitter J.observed:

'THEstanding order is inartistically worded, but itseems to us clear that when the standing order providesthat a workman will lose his lien on his appointment incase he does not join his duty within eight days of theexpiry of his leave, it obviously means that his servicesare automatically terminated on the happening of thecontingency. We do not understand how a workman whohas lost his lien on his appointment can continue in servicethereafter. Where thereforee a standing order provides thataworkman would lose his lien on his appointment, if hedocs not join his duty within certain time after his leaveexpires, it can only mean that his service stands automatically terminated when the contingency happens.'

(23) The next case which is relevant for the decision of the questionis Buckingham and Carnatac Company Ltd. v. Venkatavya andanother : (1963)IILLJ638SC . That case arose under the EmployeesState Insurance Act, 34 of 1948. The words employed in theStanding Order were as follows :-

'ABSENTwithout leave.-Any employee who absentshimself for eight consecutive working days without leaveshall be deemed to have left the company's service withoutnotice thereby terminating his contract of service.'

(24) Construing these words the Supreme Court held that there wasautomatic termination of service.

(25) Both these cases were cited before the learned Single Judgebut were distinguished by him on the ground that the languageof the Standing Orders there was different. With great respect,the cases appear to us as fully supporting the argument in favorof automatic termination advanced by the learned counsel forthe appellant.

(26) In this connection, reference may usefully be made to oneother rule, viz., rule 17 which reads as under:-

'IFa workman remains absent beyond the period ofleave orginally granted or subsequently extended, he shalllose his lien on the appointment unless (i) he returnswithin 8 days of the expiry of the leave and (ii) gives Explanationn to the satisfaction of the authority granting leaveof his inability to return to work on the expiry of leave.If a workman returns within 3 days of the expiry of theleave but does not give a satisfactory Explanationn forhis over-stay he will lose his lien on the appointment butshall be entitled to be kept on the list of 'Badli' workers.'

(27) Under this rule a work-man who over-stays his leave shall losehis lien on the appointment unless he returns within eight daysof the expiry of the leave and gives Explanationn to the satisfactionof the authority granting leave, of his inability to return onexpiry of his leave. But what happens if he does not returnwithin eight days say, nine days or ten days Rule 17 will obviouslynot apply to such a case and on the ratio of the decision in theNational Engineering Industries Limited, his services wouldautomatically stand terminated. In what way is the present case different In one case the work-man remains absent formore than eight consecutive days while in the other case thework-man over-stays his leave and is thus absent for more thaneight days. Are we to hold that in one case the service of thework-man shall not terminate automatically and it will be necessary to pass a positive order terminating his services while inthe other case no such order will be necessary and there will beautomatic termination of his employment.

(28) The next question is whether on the above construction ofrule 27(c) and on the supposition that the respondent remainedabsent for more than eight consecutive days could there be avalid reference of the dispute to the Labour Court. It cannotbe denied that a dispute arising out of automatic termination ofthe services of a work-man is not within the contemplation ofSection 2A for the simple reason that such automatic termination of contract of employment under the provisions of theStanding Order cannot be termed as discharge, dismissal or termination of the services of a work-man by an employer. Althoughin the case of National Engineering Industries Limited the SupremeCourt was concerned with the construction of the company'sstanding order in the context of Sections 33 and 33A of the Industrial Disputes Act and the question raised in Buckingham andCarnatac Company's case was one in the context of Section 73 of the Employees State Insurance Act, inasmuch as the provisionsin those sections prohibit an employer from discharging or termination the services of any worker during the period mentioned therein they are in pari materia with the provisions of Section 2A of the Industrial Disputes Act. The ratio of those decisionstherefore fully applies to the construction of Section 2A.

(29) From that point of view thereforee, the validity of the reference would certainly be open to challenge. On the facts of thepresent case however, we are not satisfied that there has in factbeen any automatic termination of the respondent's services.

(30) We have already said that the respondent's absence from 16thto 23/08/1965 does not satisfy the requirement of rule27(c). If thereforee the respondent was informed by the management by their letter dated 19/01/1966 that his name hadbeen automatically struck off the rolls on 24/08/1965 inaccordance with the standing Order on account of his continuedabsence from duty, the action taken by the management wascontrary to the rules and the decision not to allow the respondentto resume duty must be held to be an order of wrongful discharge or dismissal or termination of his services by the appellant.To such a case the provisions of Section 2A clearly apply. Thereis thus no substance in the appellant's contention that there wasno valid reference of the dispute to the Labour Court.

(31) Although in the beginning the learned counsel for the appellant had taken exception to the learned Single Judge having goneinto the question as to whether the re-organisation scheme wasbinding on the respondent the point was ultimately not pressedby him. We need not thereforee say anything about it,

(32) The last contention on which the learned counsel laid greatemphasis relates to the alleged infringement of Article 14 of theConstitution. It was conceded that the validity of Section 2A was considered by a Full Bench of this Court in Toshniwal Brothers (P) Limited v. The Presiding Officer, Labour Court andothers (Civil Writ No. 1424 of 1967 decided on 24/03/1969).He however submitted that the present attack was not confined toSection 2A alone. The argument went further and the contentionwas that in so far as Section 10 of the Act empowers the appropriate Government to refer to a Labour Court or a Tribunalan industrial dispute as envisaged in Section 2A of the Act thesection infringes the provisions of Article 14. He argued that theattack in the present case being on Section 10 as read with Section 2A of the Act, the point was not canvassed before the Full Bench.

(33) It will be seen that an attack on the virus of Section 10 of theAct in the light of Article 14 of the Constitution was repelled bythe Supreme Court in the case of Niemla Textile Finishing MillsLimited v. The 2nd Punjab Industrial Tribunal (1957 Scr 335)which is one of the cases cited by the learned counsel himself.Learned counsel, however, submitted that at that time Section 2A was not on the statute book. We are unable to see how thatwill make any difference. The only effect of the addition ofSection 2A to the Act is to remove whatever doubts had existedin the past and to expand the definition of the term 'industrialdispute' by bringing within its sweep a dispute relating to anorder of discharge, dismissal, retrenchment or termination of theservices of an individual work-man notwithstanding the fact thatthe parties to the said dispute are the individual work-manconcerned and the employer and no other work-man nor anyunion of work-man is a party to the same. With the inclusionof an individual dispute by the deeming provision contained inSection 2A in the definition of the 'industrial dispute' in Section 2(k) the said individual dispute has been given the status and theattributes of an industrial dispute and if the validity of Section 10 cannot be assailed on the ground of violation of Article 14 ofthe Constitution when it provides for a reference of an industrialdispute to one of the authorities mentioned in the said section, wefail to see how its validity can be questioned by the expansionof the definition.

(34) Learned counsel then argued that in Toshniwal's case thechallenge to Section 2A of the Act was on the ground of incompetency of Parliament to enact legislation providing for settlement and adjudication of an indivdual dispute by the use of themachinery created for a.n industrial dispute which in essenceis a collective dispute in which a body of work-men or employersare arrayed on one side. The challange on the ground of discrimination was neither raised nor considered in that case. Thedispute arising out of a claim relating to wrong-ful dismissal ordischarge of a work-man has nothing to do with the enforcementof collective rights of work-men as a body. For the enforcementof such a right which in its essence is no more than a mere contractual right of an individual, the work-man concerned must beleft to invoke the jurisdiction of ordinary civil courts. In thisconnection, we were referred to a decision of the Privy Councilin Labour Relations Board of Saskatchewan v. John Est Iron WorksLimited 1949 AC 134 where it was observed :--

'THEjurisdiction of the Board (Labour RelationsBoard). . . . . . is not invoked by the employee for theenforcement of his contractual rights: those, whatever,they may be, he, can assert elsewhere.'

(35) By the introduction of Section 2A, it was argued, what the Legislature had done was to confer jurisdiction on the appropriateGovernment to refer an individual case as distinct from a classof cases and thus conferred un-regulated and arbitrary poweron the Government. Likewise in the absence of any rational basisof classification between the case of one individual work-man andanother the provision of different procedures for dealing with thesame or similar matters, the Legislature had introduced a provision which was discriminatory in ambit and scope.

(36) In support of his argument, the learned counsel referred tothe following observations of Dass J. in the State of West Bengalv. Anwar Ali Sarkcr : 1952CriLJ510 .

'ITis, thereforee, clear, for the foregoing reasons,that the power to direct 'cases' as distinct from 'classesof cases' to be tried by a Special Court contemplatesand involves a purely arbitrary selection based on nothingmore substantial than the whim and pleasure of StateGovernment and without any appreciable relation to thenecessity for a speedier trial. Here the law lays an unequalhand on those who have committed intrinsically the samequality of offence. This power must inevitably result indiscrimination and this discrimination is, in terms incorporated in this part of the section itself and, thereforee,this part of the section itself must incur our condemnation.It is not a question of an unco nstitutional administration of a statute otherwise valid on its face but here theunconstitutionality is writ large on the face of the statuteitself.'

(37) Reference was also made to the case of Shri Ram Krishna Dalmiav. Shri Justice S. R. Tandelkar and others : [1959]1SCR279 whereit was observed that a question regarding the validity of a statuteunder Article 14 of the Constitution may come up for considerationin one or other of 'five classes' of cases and it was argued thatthe present case fell within class three. In that case 'the courtwill strike down the statute if it does not lay down any principleor policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the groundthat the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situated and that,therefore, the discrimination is inherent in the statute itself. Insuch a case the court will strike down both the law as well asthe executive action taken under such law, as it did in State ofWest Bengal v. Anwar Ah Sarkar : 1952CriLJ510 , Dwarka PrasadLaxmi Naram v. The State of Uttar Pradesh : [1954]1SCR803 and Dhirendra Krishna Mandal v. The Superintendant and Remembrancer of Legal Affairs : [1955]1SCR224 .

(38) We are not impressed by this argument. As was observedby Deshpande J. in a Division Bench decision of this Court inNational Productivity Council, New Delhi v. S. N. Kaul : (1969)IILLJ186Del , 'the object of Section 2A is not to create a rightfor the first time. On the contrary, its object is to widen theambit of a pre-existing right. The right concerned is the rightto move the Government to make a reference for settlement oradjudication of an industrial dispute.' Under Section 10 beforea reference is made the industrial dispute may either be in existence or it may be apprehended. It is not in every dispute whichhaving regard to the previsions of the Act the appropriate Government would feel bound to refer for settlement or adjudication.

(39) We think that the considerations which weighed with theSupreme Court in up-holding the validity of Section 10 whenSection 2A was not there in the statute book in Niemla Textile'scase apply with equal Force even now. There is no warrant forthe suggestion that while referring an individual dispute as definedin Section 2A the appropriate Government while exercising itsdiscretion would act arbitrarily or capriciously or so as to prejudice the interest of any of the parties concerned. The basicidea underlying all the provisions of the Act is the settlement ofindustrial disputes and the promotion of industrial peace so thatproduction may not be interrupted and the community in generalmay be benefited. This is the end which the appropriate Government has got to keep in view when exercising the discretionvested in it in the matter of making the reference to one or theother of the authorities under the Act. If the dispute betweenan individual work-man and his employer is connected with orarises out of an order of discharge, dismissal, retrenchment ortermination of the services of the work-man and has as suchthe character of an industrial dispute which, in the opinion ofthe appropriate Government either exists or is apprehended, wefail to see how it can be legitimately urged that Section 10 readwith Section 2A is un-constitutional and void as infringing thefundamental rights guaranteed under Article 14 of the Constitution. The contention thereforee fails and is rejected.

(40) The result of the fore-going discussion is that there is nomerit in this appeal which is accordingly dismissed with costs.Counsel's fee Rs. 300.00.


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