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Naresh Chandra Das Vs. Seventh Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1982)IILLJ64Cal
AppellantNaresh Chandra Das
RespondentSeventh Industrial Tribunal and ors.
Cases ReferredUnion of India v. Pint Kisku
Excerpt:
- .....mr. sen gupta contends that even assuming that under the provisions of the standing order of the company, the company was entitled to terminate the service of the petitioner for his continued absence for the specified period without leave of the company, it cannot be held that the said action of the petitioner-company is not termination within the meaning of section 2(oo). he submits that the supreme court in sunda(sic) money's case (supra), has clearly laid down that it is the fact of termination and not the reasons therefor, which is important and decisive and as such termination howsoever produced remains, termination within the meaning of section 2(oo), and for non-compliance of the provisions of section 25f before giving effect to the order of termination, the said termination.....
Judgment:

G.N. Ray, J.

1. This Rule is directed against an award made by the Seventh Industrial Tribunal, West Bengal dt. Mar. 18, 1977 in Case No. VIII-260/76 in a reference under the Industrial Disputes Act by the Labour Department, Government of West Bengal vide Order No 3900-IR/IR/10-L-185/76 dt. 7th of Aug., 1976.

2. The petitioner contends that he was a workman working as a permanent hand in the factory of respondent 2- M/s. Harbanslal Malhotra & Sons (P) Ltd., until his service was terminated by the said respondent 2. It is contended by the petitioner that he was continuing in service under the said company for more than 14 years since Feb., 1960. It appears that the State Government made a reference to the Industrial Tribunal for adjudication of the following issues

Whether termination of service of Sri Naresh Chandra Das is justified? To what relief, if any, is he entitled?

3. It appears that the petitioner submitted his written statement before the learned Industrial Tribunal challenging the termination of service as illegal and unjustified and prayed for reinstatement with full back wages and amenities due to him for the period of his forced unemployment. The company also filed a written statement-in-reply to the petitioner's written statement and it was contended inter alia by the company that the name of the petitioner-workman was struck off from the Muster Roll of the factory in accordance with S.O. Clause (6)(4)(a) of certified standing orders of the company. It was also stated by the company that the company sent a letter date 27th August, 1974 to the workman by registered post with a/d to the last known add ess, but the said letter came back with the postal remark 'left' and only on 23rd September, 1974 the workman's father turned up when a copy of the letter of termination was handed over to him.

4. It appears that the learned Industrial Tribunal passed its award on 18th March, 1977 and the said award was published by the Government of West Bengal, Labour Department by order dated 22nd April, 1977 and the said award is Annexure ''D' of the writ petition. The learned Seventh Industrial Tribunal held that the management was justified in terminating the service of the petitioner for his unauthorised absence without any intimation and as such, he was not entitled to any relief whatsoever.

5. It is contended by the petitioner in the instant Rule that termination of service, by whatever process it is made, is retrenchment within the meaning of Section 2(oo), of the Industrial Disputes Act, and as the conditions laid down Under Section 25F. of the I.D. Act were not complied with by the company, the workman was entitled to reinstatement with full back wages.

6. Mr. Partha Sarathi Sen Gupta, learned Counsel appearing for the petitioner workman submits that retrenchment as appearing in Section 2(oo) of the Industrial Disputes Act, is very wide in its implication and the Supreme Court has interpreted Section 2(oo) of the I.D. Act, in clear and unambiguous terms (sic) the decision made in the case of State Bark of India v. N. Sundara Money reported in 1976-I L.L.J. 478 It has been decided in the said case that breakdown of Section 2(oo) unmistakably expands the semantics of retrenchment. 'Termination...for any reasons whatsoever ' are the key words. Whatever the reason, every termination spells retrenchment. Termination embraces not merely the act of the termination by the employer but the fact of termination, however, produced. It has also been held by the Supreme Court that if the provision of Section 25F is not complied with in effecting retrenchment it becomes illegal and void.

7. Mr. Sen Gupta contends that even assuming that under the provisions of the standing order of the company, the company was entitled to terminate the service of the petitioner for his continued absence for the specified period without leave of the company, it cannot be held that the said action of the petitioner-company is not termination within the meaning of Section 2(oo). He submits that the Supreme Court in Sunda(sic) Money's case (supra), has clearly laid down that it is the fact of termination and not the reasons therefor, which is important and decisive and as such termination howsoever produced remains, termination within the meaning of Section 2(oo), and for non-compliance of the provisions of Section 25F before giving effect to the order of termination, the said termination becomes illegal and void and as such the petitioner is entitled to reinstatement with full back wages.

8. Mr. Sen Gupta also refers to a latter decision of The Supreme Court made in the case of Santosh Gupta v. State Bank, Patiala reported in 1980-II L.L.J. 72 It appears that the Supreme Court also noted in Santosh Gupta's case the earlier decision of the Supreme Court made in the case of Delhi Cloth & General Mills Co. Ltd. v. Shambu Nath Mukherjee, reported in 1978-I L.L.J. 1. The Supreme Court held in the said decisions that retrenchment means termination of service for any reason whatsoever and it covers every kind of termination of service except those not expressly included in Section 25F or not expressly provided for by other provisions of the Act such as Section 25FF and Section 25FFF.

9. It also appears that in Santosh Gupta's case (supra) the Supreme Court has also noted in Delhi Cloth Mill's case (supra) it has been decided that striking off the name from the muster roll is also retrenchment, Mr. Sen Gupta also refers to another decision of the Supreme Court made in the case of Mohan Lal v Management of Bharat Electronics Ltd , reported in 1981-II L.L.J. 70, In that case, an order of termination of service of a probationer whose service was not found suitable during the period of a probation was made. It has also been held in the said case that even in the case of termination of an un-successful probationer, it cannot be contended that such termination was made on any of the grounds specified in Section 2(oo). It has been held that if it is not a case of any of the grounds specified in Section 2(oo) of the I.D. Act, but the termination is made on any another ground, such termination without following the procedure of Section 25F becomes void. It has been held by the Supreme Court that niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever except in the cases excepted in the section itself will constitute retrenchment. Relying on the aforesaid decision, Mr. Sen Gupta contends that the petitioner's service came to end and his name was removed from the muster roll of the company. Hence, such action must be held to be a termination within the meaning of Section 2(oo). Even assuming that there may be justification of terminating such service because of the standing order of the company the action of the company, however, remains nothing short of termination within the meaning of Section 2(oo), of the I.D. Act, and as such the provision of Section 25F of the I.D. Act, are squarely applicable to the facts of the case and the petitioner is, therefore, entitled for reinstatement with all back wages because such termination was effected without following the procedure laid down in Section 25F of the I.D. Act, thereby making the order of termination illegal and void ab initio.

10. Dr. Monotosh Mukherjee, the learned Counsel appearing for the respondent- company, however, submits that the termination of service in the instant case does not attract the provision of Section 2(oo), of the I.D. Act. The order of termination must be made by an overt act of the employer. If the termination comes into effect automatically in view of the provisions of the standing order of the company and the company has not done any overt act in the matter of termination of service, then such termination docs not come within the definition of Section 2(oo) of the I.D. Act, and Section 25F. of the I.D. Act, is not applicable to the facts of such case. In this connection, Dr. Mukherjee refers to a decision of this Court made in the case of Dabur (S.K. Burman) Pvt. Ltd. v. State of West Bengal, reported in 1979-I L.L.J. 34. In that case, the company sought to terminate the service of the employee because of his continued absence without the leave of the company on the basis of the provisions of the standing order of the company and it was observed by this Court that when there was no overt act by the employer and the termination had come into effect automatically in view of the provisions of the standing order, such termination was not retrenchment within the meaning of Section 2(oo), Industrial Disputes Act.

11. Dr. Mukherjee also refers to a decision of the Supreme Court made in the case of National Engineering Industries Ltd, v. Hanuman, reported in 1967-II L.L.J. 883, It was held in the said decision by the Supreme Court that when in view of the standing order a workman had lost his lien on his appointment if he did not join duty within certain time after his leave had expired, it could only mean that his service had stood automatically terminated when a contingency had happened. It was observed by the Supreme Court that when, therefore, the workman's service was terminated automatically under the standing order, Section 33, I.D. Act, would not apply and so the application Under Section (sic)3A would not be maintainable as there was no question in such a case of the contravention of Section 33, I.D. Act.

12. Dr. Mukherjee also refers to a decision of the Bombay High Court made in the case of Chipping and Painting Employees' Association Ltd. v. Zambre (AT) reported in 1968-II L.L.J. 193. It was decided in the said case that if by continued absence it was deemed by the provisions of the standing order that the employee had abandoned the service, then the intention to abandon or actual abandonment would be of little or no consequence. The employer under the law would draw the inference of abandoning the service whenever unauthorised absence would take place. It was also observed that common law had no application when certified standing order had created a fiction of law.

13. Dr. Mukherjee has also referred to another decision of the Supreme Court made in the case of Orissa Road Transport Co Ltd. v. Lal Mohan Majhi, reported in 1974-II L.L.J. 49. In the said decision an earlier decision of the Supreme Court made in the case of National Engineering Industries Ltd.'s case (supra) WAS also considered by the Supreme Court. It was held that the effect of automatic termination of service because of consecutive absence in terms of the standing order of the company is that nothing more had to be done by the company to dissolve the relationship of employer and employee.

14. Dr. Mukherjee also refers to a decision of the Kerala High Court made in the case of Travancore Rayons Ltd. v. Travancore Rayons Employees' Union reported in 1978-I L.L.J. 84. It has been decided by the Kerala High Court in the said case that where an employer bona fide takes recourse to the provisions of the standing order entitling him to deem the absentee workman as having left the service, the law does not cause any obligation on the management to hold the departmental enquiry before terminating the service of the employee. That is because the termination of service is automatically brought by the action of the employee himself by the force of provisions contained in the certified standing orders.

15. Relying on the said decisions, Dr. Mukherjee contends that in the instant case the employee had remained absent for some period without any sanction of leave by the company and in view of the standing order of the company, the service of the employee stood automatically terminated and no voluntary action for terminating the service of the employee was required to be performed by the company. In such circumstances, the termination of service cannot be held to be retrenchment within the meaning of Section 2(oo) of the I.D. Act, and the decision of the learned Industrial Tribunal is quite reasonable and justified and no interference is called for.

16. Dr. Mukherjee in this case refers to the decision of the Supreme Court made in the case of Hariprasad Shivshankar v. A.D. Divelkar reported in 1957-I L.L.J 243 in the said decision, it has been decided that Legislature in using the expression for any reason whatsoever in Section 2(oo) says in effect it does not matter why you are discharging the surplus labourers, if the other requirements of the definition are fulfilled then it is retrenchment. Dr. Mukherjee also refers to another decision of the Supreme Court made in the Hindusthan Steel reported in 1977-I L.L.J. 1 :and submits that decisions of the Supreme Court in the cases of Sundara Money (supra ) and Hariprasad (supra were considered by the Supreme Court in Hindusthan Steel's case (supra). The Supreme Court has held in that decision that there is no conflict between the decisions made in Hariprasad's case and Sundara Money's case. The decision in Hariprasad's case, therefore, still holds good, and, it has been decided in Hariprasad's case that for making the termination a retrenchment, voluntary action of the company to terminate the service of surplus labourers is to be taken and all cases of termination are not covered by Section 2(oo) of the I.D. Act. Relying on the said decision. Dr. Mukherjee contends that in the instant case, the company did not terminate the service of the concerned employee on his own motion treating him as a surplus labour but because of his own action the employment of the concerned employee automatically came to an end and his name had to be removed from the muster roll as a matter of course. He submits that when by his own action the employee's service comes to an end and the employer has nothing to do in terminating the relationship of master and servant, the rovision of Section 2(oo) has no manner of application at all. Dr. Mukherjee also contends that the dicisions of Sundara Money's case and Hariprasad's case and other decisions were taken into consideration by the Division Bench of this Court in Dabur's S.K. Barman) case, (supra) observed by the Division Bench of this Court that when the termination of service is effected automatically in view of the standing order for continued absence of the employee, such cessation of relationship of master and servant is not retrenchment within the meaning of Section 2(oo) and the said decision of the Division Bench is binding on a single Judge of this Court. He, therefore, submits that in the facts of the case, no interference by the writ Court is called for.

17. In reply to the aforesaid contentions of Dr. Mukherjee, Mr. Sengupta, the learned Counsel for the petitioner submits that in Hariprasad's case, (supra) the Supreme Court only emphasised that in case of total closure of business, the question of retrenchment would not arise. The expression 'retrenchment' appearing in Section 2(oo) although very wide, must necessarily postulate that the Industrial concern should be a running concern and the employees were made surplus in the said running concern. It was also decided in Hariprasad's case that when the industrial concern was completely closed and there was no occasion for treating any labour as surplus, a vary strict interpretation of retrenchment Under Section 2(oo) should not be nude. It was observed that in such circumstances, if a very wide and strict interpretation of the expression 'retrenchment' in Section 2(oo) would be given to include all cases of termination even when the industrial unit was closed, such interpretation would be devoid of the context in which it was used.

18. Mr. Sengupta submits that ''surplus' cannot be a meaning of the expression 'retrenchment' and in Santosh Gupta's case, (supra) the Supreme Court has expressly repelled such contention. Mr. Sengupta contends that the definition of retrenchment in Section 2(oo) was interpreted by the Supreme Court in Sundara Money's case, (supra) and in later decisions, the Supreme Court has also held that any termination of service, effected by whatever process, becomes retrenchment within the meaning of Section 2(oo). It has also been decided by the Supreme Court in Hindustan Steel's case, (supra; that there is no conflict between the decisions made in Hariprasad's case, (supra) and Sundara Money's case because Hariprasad's case was decided on the said facts of the case where there had been total closure of the industrial concern and it was only decided in Hariprasad's case that in such circumstances, a narrow and strict interpretation of Section 2(oo) could not be given so as to mike the interpretation devoid of the context in which Section 2(oo) was used.

19. In this connection, Mr. Sengupta also refers to another Division Bench decision of this Court made in the case of Union of India v. Pint Kisku, reported in (1977 Lab IC 1236). The Division Bench has held in the said decision that when there is no conflict between Hariprasad's case, (supra) and the case of N. Sundara Money, (supra; as held by the Supreme Court in the Hindustan Steel's case, (supra) it only follows that the termination of service of all workmen of an industry which is not a going concern will not be a retrenchment within the meaning of Section 2(oo) but in all other cases, it will amount to retrenchment because the definition of the termination as given in Section 2(oo) is not limited only to the case of surplus labour but it also applied to all other employment as well and it has been observed by the Division Bench that in the judgment of N. Sandra Money, it has been held that whatever may be the reason a termination spells retrenchment.

20. Mr. Sen Gupta submits that in Piru Kisku's case (supra), the termination of service was made in terms of the Railway Establishment Code but the Division Bench has held that such termination is also retrenchment within the meaning of Section 2(oo). He submits that on similar reasons, the termination of service on account of the provision of the standing order is nothing but retrenchment and although such termination may be justified and the employer may not be required to start any departmental proceedings and to give any opportunity to the employee to show cause before termination but such termination does not lose the character of retrenchment within the meaning of Section 2(oo), I.D. Act. He submits that the theory of surplus labour sought to be canvassed by Dr. Mukherjee has been expressly ruled out by the Supreme Court in the later decisions and for this he draws the attention of the Court to the observations' made in Santosh Gupta's case (supra).

21. Mr. Sengupta also submits that the observation of the Division Bench of this Court made in Dabur's (S.K. Burman) case (supra) must be held to an obiter dictum because it was decided by this Court that there was no occasion for the termination of the employee automatically because there was not continued absence as required under the standing order so far the employee was concerned. He also submits that subsequent decisions of the Supreme Court have made it quite clear that termination by any process whatsoever is retrenchment within the meaning of Section 2(oo) and the theory of surplus labour cannot be accepted. Mr. Sengupta has also submitted that the decision made in National Engineer's case since relied en by Dr. Mukherjee can clearly be distinguished. The question for the decision in the said case was whether in case of automatic termination in terms of the standing order for continued absence for the specified period, an application Under Section 33(1)(b) was necessary or not. It was decided in the said decision that since the termination in such case was not a termination for any misconduct an application Under Section 33(1)(b) was not necessary. There was no occasion to decide in the said case as to whether automatic termination was retrenchment or not within the meaning of Section 2(oo) of the Act and the said question was also not decided. Referring to the Bombay High Court's decision in Chipping & Painting, Employees' Association Ltd's. case (supra) relied on by Dr. Mukherjee, Mr. Sengupta submits that the decision of the said case it also not applicable to the facts of the instant case. In Chipping & Painting Employees Association Ltd's. case, the Bombay High Court had only decided as to whether or not in case of automatic termination, the provision of Section 33(1)(b) was attracted. He also refers to another decision cited by Dr. Mukherjee made in the case of Orissa Road Transport (supra) and submits that the decision of the said case is also not an authority for the proposition that termination of service because of the provisions of the standing order, is not retrenchment within the meaning of Section 2(oo). In the said case also, the question involved was whether the application Under Section 33A, I.D. Act, was required to be made in the case of automatic termination of service.

22. Mr. Sengupta also contends that in Dabur's case (supra) this Court made an observation by way of obiter dictum about the fact of automatic termination in the context of Section 2(oo), I.D. Act. He also submits that Sundara Moneys's case (supra) was referred to by the Division Bench in the said decision in Dabur's (S.K. Burman) case (supra) and it was observed that automatic termination was not termination by the employer and as such it was not retrenchment but such contention has been expressly repelled in Santosh Gupta's case (supra) which is a later decision of the Supreme Court. The said decision of the Division Bench of this Court in Dabur's case can no longer be held to be a good law. It was observed in Santosh Gupta's case by the Supreme Court that in Sundara Money's case, the Supreme Court has interpreted Section 2(oo), I.D. Act, and it was held that even if the termination was not by the employer, the said termination would still be a retrenchment within the meaning of Section 2(oo), Mr. Sengupta contends that in Santosh Gupta's case, the implication of the decision in Sundara Money's case was further considered and interpreted but the Division Bench in Dabur's case (S.K. Burman ) no occasion to consider the later decision made by the Supreme Court clarifying the whole position in Santosh Gupta's case.

23. Mr. Sengupta also contends that in an other later decision made by the Supreme Court in Mohan Lal's case (supra), it has been clearly observed that in Sundara Money's case the Supreme Court has laid down the principle of law and the said decision was not confined to the fact of that case. Accordingly Mr. Sengupta contends that the termination of service of the employee even on the ground of automatic termination in view of the standing order is retrenchment within the meaning of Section 2(oo) and the provisions of Section 25F not having been complied with in effecting such retrenchment, the petitioner is entitled to reinstatement with full back wages. Considering the submissions of the learned Counsel appearing for the parties it appears to me that the Supreme Court in Sundara Money's case has given the interpretation of Section 2(oo) in no uncertain terms and it has been laid down by the Supreme Court in Sundara Money's case that the fact of the termination is the most important consideration and not the process or ground of such termination. It has been decided by the Supreme Court that whatever may be the reasons for bringing the termination, the termination becomes retrenchment within the meaning of Section 2(oo). In my view, Mr. Sengupta is justified that in later decisions, viz., in Santosh Gupta's case (supra) and in Mohan Lal's care (supra) the Supreme Court has clearly observed that in Sundra Money's case the Supreme Court has interpreted Section 2(oo) in the widest possible term and even if the termination is effected not by any voluntary action on the part of the employer, such termination also becomes retrenchment within the meaning of Section 2(oo). In view of the said decisions of the Supreme Court made in Santosh Gupta's case and in Mohan Lal's case (supra), it does not appear to me that there is any further scope to hold that simply because of the action of the employee, his service stood terminated, and the employer was not responsible for such termination the same was not retrenchment within the meaning of Section 2(oo).

24. In the aforesaid circumstances, the Rule succeeds and is made absolute and the decision made by the learned Industrial Tribunal is set aside. It is directed that the respondent-company will pay to the petitioner all back wages. The petitioner company, however, will be entitled to terminate the service of the petitioner in view of his continued absence without leave in terms of the standing order after complying with the provisions of Section 25F., I.D. Act.

25. There will be no order as to costs.

26. On the prayer of the learned Counsel of the respondent-company, the operation of this order will remain stayed for two weeks after the Puja holidays.


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