IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 32076 of 1997 Between: Syed Mahmood Ali S/o Syed Mahmood Ali, r/o 23-1-916/B, Moghalpura, Hyderabad 500002. ..... PETITIONER AND 1 The Labour Court- II at Hyderabad. rep by its Presiding Officer, Chandra Vihar Complex, M.J.Road, Hyderabad. 2 The Executive Director, M/s Bharat Heavy Electrical Ltd. Ramachandrapuram, Hyderabad 500032. 3 The General Manager, (H.E.& Fab), M/s Bharat Heavy Electricals Ltd. Ramachandrapuram, Hyderabad-500032. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to call for the records connected with the Award dt.20.9.1997 in I.D.No.709/92 (Old I.D.NO.38/90) on the file of the first respondent and quash the same setting aside the order dt.23.2.1989 passed by the respondent 2 and 3 as unjust, illegal, unstainable and also ultra vires of the Art.14 & 21 of the Constitution of India and pass. Counsel for the Petitioner:MR.V.HARI HARAN Counsel for the Respondent No.1: GP FOR LABOUR Counsel for the Respondent Nos.2 and 3: SRI S. RAVINDRANATH (SC FOR BHEL) The Court made the following Order: Aggrieved by order of the Labour Court-II, Hyderabad, in I.D.No.709 of 1992 (old I.D.No.38 of 1990) dated 20-09-1997, the workman has invoked the jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner-workman was working with M/s.Bharat Heavy Electricals Ltd., Hyderabad, having joined the said Company in the year 1965. Petitioner would contend that he was bed ridden from 22- 01-1989, that he was asked to take complete bed rest and that he had sent leave application for a period of 20 days with effect from 22-01-1989 enclosing a medical certificate thereto. Petitioner claims to have extended leave from 14-02-1989, to have been bed ridden till 24-07-1989 and it was only thereafter was he found fit to join duty. Petitioner reported for duty along with a medical fitness certificate dated 23-07-1989, which certificate, according to him, discloses that he was advised to take bed rest from 22-01-1989 till he was found fit to join duty. Petitioner would contend that the Management did not take him back into duty, and had, instead, informed that his services stood terminated with effect from 31-01-1989, by order dated 28-02- 1989, on the ground that he had been unauthorizedly absent from duty continuously for a period of 7 days, which resulted in cessation of his services, under clause 12(xii) of Bharat Heavy Electricals Limited Standing Orders (‘for short ‘BHEL Standing Orders’). Both on the ground that his termination was in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short ‘the Act’) and that no departmental enquiry was held before his services were terminated, the petitioner-workman invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Act. Before the Labour Court, the petitioner-workman relied on the proviso to clause 12(xii) of the BHEL Standing Orders to contend that if the concerned employee proves to the satisfaction of the Management that his absence was on account of sickness, or for other valid reasons, the Management may at its discretion convert his absence into leave without pay or with pay if due. The petitioner contended before the Labour Court that, despite a request being made under the proviso to clause 12(xii) of the BHEL Standing Orders to consider his appeal dated 07-08-1989, no orders were passed thereupon by the respondent-Company. It is necessary to note that despite a specific plea being taken in the claim statement filed by the petitioner, placing reliance on the proviso to clause 12(xii) of the BHEL Standing Orders, the respondents did not advert to this aspect in its counter filed before the Labour Court. The Labour Court did not examine this contention but proceeded on the premise that the petitioner-workman had committed misconduct in remaining unauthorisedly absent from duty and that the respondent-Company was justified in terminating his services and, accordingly, passed an award. Before this Court Sri V.Hariharan, learned counsel for the petitioner-workman, would contend that the petitioner having joined the services of the respondent-Company in the year 1965, and having put in more than 24 years of service prior to his alleged termination from 31-01-1989, by order dated 23-02-1989, the said order passed without complying with the mandatory provisions of Section 25-F of the Act would render the very termination ab initio void. Learned counsel would rely on Scooters India Ltd. v. M.Mohammad Yaqub[1] and Uptron India Ltd. v. Shammi Bhan[2]. Sri S.Ravindranath, learned standing counsel for the respondent-Company, on the other hand, would contend that the clause in the Standing Orders of the respondent-Company is, in effect, a statutory contract which is binding on the workman. Learned standing counsel would submit that, in accordance with the stipulations in the contract, the petitioner’s services stood terminated on his remaining unauthorisedly absent for more than 8 days. Learned counsel would place reliance on Section 2(oo)(bb) of the Act in this regard. Learned standing counsel would contend that, even if this Court were to be satisfied that termination of the services of the petitioner-workman was in violation of Section 25-F of the Act, this Court should exercise its discretion and direct payment of compensation in lieu of reinstatement. The amendment to Section 2(oo), by insertion of clause (bb), was by way of an amendment by Act 49 of 1984 with effect from 18- 08-1984. The judgment of the Supreme Court in Scooters India Ltd.1, related to a termination order passed on 01-08-1976, much prior to the amendment to Section 2(oo), and as such, has no application. However, in Uptron India Ltd.2, the Supreme Court observed thus:- “…..What was contended before the Tribunal as also before the High Court was that the termination of the services of respondent was covered by Clause (bb) of Section 2(oo) and, therefore, it could not be treated as "Retrenchment" with the result that other statutory provisions, specially those contained in Section 25F of the Act were not required to be complied with. This argument which was not accepted by the Tribunal and the High Court has been stressed before us also and here also it must meet the same fate as it is without any substance or merit. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed-term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. In the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely,that the termination was in pursuance of a stipulation to that effect in the contract of employment, does not arise. The contract of employment referred to in the earlier part of Clause (bb) has to be the same as is referred to in the latter part. This is clear by the use of words "such contract" in the earlier part of this Clause. What the clause, therefore, means is that there should have been a contract of employment for a fixed term between the employer and the workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. If such contract, on the expiry of its original period, is not renewed and the services are terminated as a consequence of that period, it would not amount to "Retrenchment". Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case also, the termination would not amount to "retrenchment". This view finds support from a decision of this Court in Escorts Ltd. v. Presiding Officer, (1997) 11 SCC 621) ………”. While it is true that Section 2(oo) (bb) arose for consideration therein, what cannot, however, be lost sight of is that in the award of the Industrial Tribunal, which eventually came up for consideration before the Supreme Court, the question which arose for consideration was whether termination of the services of the workman fell within the conditions stipulated in clause (bb) of Section 2(oo) of the Act. As this question, and the applicability of the proviso to clause 12(xii) of the BHEL Standing Orders, has not been examined by the Labour Court, it would be inappropriate for this Court, in exercise its certiorari jurisdiction under Article 226 of the Constitution of India, to do so since it is well settled that this Court does not sit in appeal but merely exercises supervisory jurisdiction over the award of Labour Courts/Industrial Tribunals. It is also well settled that even in case of violation of Section 25-F of the Act, the Labour Courts/Industrial Tribunals have the power to award compensation in lieu of reinstatement. Since these are matters which the Labour Court is required to decide, ends of justice would be met if the award is set aside and the matter is remanded to the Labour Court for its consideration afresh. Since the petitioner-workman is aged 63 years, and since the dispute was raised in the year 1990 nearly two decades ago, it is but appropriate that the Labour Court considers the matter afresh, after permitting both the parties to adduce evidence, and passes a reasoned award, in accordance with law, at the earliest in any event not later than four months from the date of receipt of a copy of this order. The Writ Petition is, accordingly, disposed of. However, in the circumstances, without costs. ______________ 22-02-2008 usd ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Presiding Officer, Labour Court- II, Chandra Vihar Complex, M.J.Road, Hyderabad. 2 The Executive Director, M/s Bharat Heavy Electrical Ltd. Ramachandrapuram, Hyderabad 500032. 3 The General Manager, (H.E.& Fab), M/s Bharat Heavy Electricals Ltd. Ramachandrapuram, Hyderabad-500032. 4. Two CCs to G.P. for Labour, High Court Buildings, Hyderabad. (out) 5. Two CD copies. Form-NIC-OGS/WP{JPK} [1] 2001(1) SCC 61 [2] 1998(6) SCC 548