IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3277 of 2002 Date of decision:11.11.2009 Raja Ram ....Petitioner versus M/s Genon India, Private Limited, 184, Udyog Vihar, Gurgaon, and another. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashwani Bakshi, Advocate, for the petitioner. Mr. Jai Singh Yadav, Advocate, for Mr. Sachin Mittal, Advocate, for respondent No1. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The award that is in challenge is a rejection of a reference sought at the instance of the workman that he had been illegally terminated from service. The contention of the workman was that he was appointed as an Operator on 01.03.1989 and he took 3 days leave on 18.02.1991. He was said to have taken ill and and he did not report for duty and when he came back on 01.06.1991, he was not permitted to enter into the factory. The response of the management to the contention of the workman was that after the workman overstayed on his sanctioned leave, a notice had been sent on 04.03.1991 asking the workman to rejoin immediately and when that was not done, yet another notice was issued Civil Writ Petition No.3277 of 2002 - 2 - on 03.04.1991 terminating his services and to come to the factory to secure the dues to him. This notice dated 03.04.1991 was the basis for the demand notice and the claim statement before the Labour Court on a reference. 2. It is an admitted case that no enquiry had been ordered by the management and the management rest contended with its statement that the standing orders provided for automatic termination in the event of absence for 12 days without sanctioned leave and put in documents purported to have been sent to the workman on 04.03.1991 directing him to rejoin duty and the order passed on the same day striking his name from the rolls. The workman had denied that he received any letter from the management directing him to rejoin duty and the only document which, according to him was received, was said to have borne the same date namely, 04.03.1991, but it recited the so-called decision of the management that he had lost lien on his employment and his absence has to be taken to mean that he was no longer interested to continue in service. The whole focus for decision before the Labour Court therefore went on whether the notices M-2 and M-3 had been sent by the management and received by the workman. The letters M-2 and M-3 were reported to have been sent by the registered letters and the Court raised a presumption that the registered letters issued to the addressee must be presumed to have been received and found that the workman having been not availed of an opportunity to rejoin duty after expiry of notice had forfeited his employment and the termination effected was, therefore, justified. Civil Writ Petition No.3277 of 2002 - 3- 3. The effect of clauses providing for automatic cessation of service for unauthorized absence have been considered by the Hon'ble Supreme Court with different types of clauses provided in the standing orders. In Punjab and Sind Bank Versus Sakatar Singh- 2001(1) SCT 265, the Hon'ble Supreme Court dealt with the case of a workman in Nationalized Bank, who was bound by the terms of settlement brought through Shastri award that if a workman did not resume duty for a period of 90 days without sanctioned leave, the services of the workman is liable to be terminated. The Hon'ble Supreme Court considered the case in a situation where the workman had been issued with a notice for rejoining duty and his persistent absence for a period of 90 days inspite of notice was found in the said judgment as constituting automatic cessation of service. It had been earlier decided in D.K.Yadav Versus M/s J.M.A. Industries Limited-1993(3) RSJ 696, that a clause providing for an automatic loss of lien in case of absence from duty when no enquiry had been held would be taken to be an incident of violation of principle of natural justice. The three member Bench of the Hon'ble Supreme Court held that principles of natural justice is an integral part of the guarantee of equality established under Article 14 of the Constitution and the termination effected without affording any opportunity to the workman to explain his absence was bad in law. Still later in M/s Lakshmi Precision Screws Ltd. Versus Ram Bahagat- AIR 2002 SC 2914, the Hon'ble Supreme Court held that even if there is a clause in the standing orders providing for automatic termination, it was imperative that an opportunity is given to a workman to explain his absence. In this Civil Writ Petition No.3277 of 2002 - 4 - case, all that was admitted was that he received W-1 which stated in categorical terms that the workman had lost his lien on his service and that he was requested to visit the factory for full and final settlement of dues. It does not require any straining of law or interpretation to know what the management meant. It was literally showing the exit door and advised the workman to collect his terminal dues. It is in this context that the service of the letters exhibited M-2 and M-3 assumed significance. M-2 takes a different tenor namely that the management was giving an opportunity to the workman to rejoin duty. The explanation offered by the management was that it had originally prepared Ex. W-1 but later finding that it would not meet with the legal requirements, redrafted yet another letter affording an opportunity to the workman to rejoin and that was the letter which was sent. The Labour Court reasoned that the letter which the workman claimed that he received namely W-1 was not established by the workman as to how he received it. It is a strange logic employed by the Labour Court for, if the preparation of such a letter was an admitted fact and if it was also admitted that signature contained on W-1 was that of the officer whose signatures was also found in M-2 and M-3, the inference is inescapable that they did dispatch W-1 but the management was trying to conceal the same and came with the false story that the letter had not been dispatched. The Labour Court had again erred on the application of the correct principles of statutory presumption of service of registered notice. The statutory presumption does no more than cast the burden of proof on the addressee to state that the letter was not received. The Civil Writ Petition No.3277 of 2002 - 5 - burden of proof is indeed light; if he comes on Court and states in Court that he did not receive it, the onus of proof will shift to the management to establish the service of registered post. It has been held by the Hon'ble Supreme Court in Puwada Venkateswara Rao Versus Chidamana Venkataramana-AIR 1976 SC 869, that the presumption which Section 27 of the General Clauses Act does not apply to a situation where the addressee denies the receipt of registered letters. The law has also been explained as to how the onus of proof shall be discharged in a case where addressee denies the receipt. The Labour Court was clearly in error in assuming that M-2 and M-3 had been served. 4. If W-1 was the only document which was admitted by the workman to have been received, it should mean that the management was trying to keep off the workman for a temporary absence without affording an opportunity to the workman to rejoin. The termination is bad and the workman is entitled to be reinstated. The termination was effected as early as in the year, 1991 and for all the period when the workman was not employed, it shall be unjust to provide for whole of the back wages. The workman has placed no evidence in Court about his status of employment. He was a daily wager and it could only be expected that he would have funded himself for all these years with some favour of employment. In my view, the appropriate compensation would be to grant 25% back wages, which would meet the ends of justice. 5. The award of the Labour Court, under the circumstance, is set aside and the workman is entitled to reinstatement, continuity of Civil Writ Petition No.3277 of 2002 - 6 - service with 25% of back wages as stated above. The writ petition is, accordingly, allowed. No costs. (K.KANNAN) JUDGE 11.11.2009 sanjeev