IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 14095 of 2009 . Date of Decision : April 26, 2010. Sh. Dhir Singh Beldar ...... Petitioner . Versus. The Presiding Officer, Labour Court, Gurdaspur, and others ..... Respondents . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. R.S. Ahluwalia, Advocate, for the petitioner. Ms. Monica Chhibbar Sharma, DAG Punjab, for respondents. AUGUSTINE GEORGE MASIH, J.. Through this writ petition, the petitioner/Workman (hereinafter referred to as “the Workman”) has challenged the Award dated 03.06.2009 (Annexure-P-3) passed by the Labour Court, Gurdaspur, vide which the reference had been answered against the Workman, by holding that the Order of termination of services was due to abandonment of job by the Workman himself, is justified and in order, thus, the Workman is not entitled to any benefit. Counsel for the Workman submits that the Workman had started his work as a Beldar on workcharged basis with the Ranjit Sagar Dam Project on 14.01.1987. He worked as such till 23.09.1993 when he fell sick and was diagnosed as patient of Pulmonary Tuberculosis P-I.V.D. He started taking treatment from a competent doctor and was advised complete bed rest. The Workman informed the respondent Authorities regarding his illness and prayed for grant of leave for the said purpose. However, the services of C.W.P. No. 14095 of 2009 . -2- the Workman were terminated, vide Order dated 30.12.1993 (Annexure-P1) on the ground that the Workman had remained absent from duty with effect from 24.09.1993 and as such had abandoned his job. Ld. Counsel contends that before issuance of order of termination, neither any chargesheet was issued to the Workman nor any departmental inquiry was held against him, which would have provided a reasonable opportunity to him to explain his absence from duty. His submission is that the termination of the services of the Workman is in violation of the principles of natural justice and, therefore, the said order cannot be sustained. He contends that absence from duty is a mis-conduct and, therefore, departmental inquiry was required to be held against the Workman before passing the order of termination. Even if the absence of the Workman is treated as abandonment on his part, the same amounts to retrenchment and since the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) have not been complied with, the Workman would be entitled to reinstatement in service with all consequential benefits. In support of this contention, counsel for the Workman relies upon the judgments of Hon'ble the Supreme Court in the cases of Delhi Cloth and General Mills Co. Ltd. Versus Shambhu Nath Mukherji and others, A.I.R. 1978 S.C. 8, and D.K. Yadav Versus M/s J.M.A. Industries Ltd., 1993 (3) S.C.T. 537, and judgments of this Court in the cases of Dhani Ram and others Versus Presiding Officer, Labour Court-II, Faridabad, and others 2007 (1) S.C.T. 59, and The Management of M/s Escorts Limited, Faridabad Versus Kesar Chand and another, 2009 (1) S.C.T. 150. He prays for allowing the writ petition. On the other hand, counsel for respondents submits that the order of termination passed by the respondent/Management (hereinafter referred to as “the Management”) is in accordance with Clause 19.12 of the Certified C.W.P. No. 14095 of 2009 . -3- Standing Orders of Ranjit Sagar Dam Corporation (hereinafter referred to as “the RSDC”). It is an admitted position between the parties that the Certified Standing Orders of the RSDC are applicable to the parties. According to the said Certified Standing Orders, if a Workman remains absent beyond the period of granted leave, he shall be liable to loose his lien on the appointment unless he submits convincing explanation qua casue(s) of his absence to the satisfaction of the Executive Engineer (Incharge). The requirement of this clause further is that a show cause notice by the competent authority under registered post for calling upon the Workman to resume duties within ten days be issued. Accordingly, two registered notices dated 21.10.1993 and 06.11.1993 (Ex.R1 and Ex.R2 respectively) were sent to the Workman. Despite the issuance of the same, he did not join the duty, leading to the passing of the order of termination. She contends that no intimation with regard to illness of the Workman was communicated to the Management and there was an inordinate delay of four years and six months from the date of his absence till his submission of representation alongwith the medical certificates about his illness to the Management. This clearly shows that the Workman had abandoned his job and, therefore, the termination of services of the Workman is fully justified. Her further submission is that the Workman had failed to produce his own evidence before the Labour Court either explaining the delay or to prove the medical record on which reliance was placed by him with regard to his illness. His wife and son, who were stated to have intimated and visited the office of the Management, informing and praying for leave of the Workman on the ground of illness had not been produced before the Labour Court nor had the doctor or original medical record produced before it to prove the bonafides of his absence from duty. Thus, the findings recorded by the Labour Court with regard to abandonment of job by the Workman was C.W.P. No. 14095 of 2009 . -4- in accordance with law, which does not call for any interference by this Court. She on this basis prays that the present writ petition deserves to be dismissed. I have heard counsel for the parties and have carefully, with the assistance of counsel, perused the records as also the judgments relied upon by counsel for the Workman. It is not disputed that the Workman was appointed as a Beldar on workcharged basis. He absented himself from duty with effect from 21.04.1993. According to the Workman he had intimated the Management through his wife and son and prayed for leave on the ground of his illness, whereas the Management states that the Workman absented himself from duty without any intimation. The Workman states that he had not received any notice(s) from the Management, whereas the Management states that it had sent two registered notices dated 21.10.1993 and 06.11.1993 (Ex.R-1 and Ex.R-2 respectively) to the Workman at his home address mentioned in the service book, but despite the issuance of the same the Workman did not resume duties, leading to the termination of his service as per Clause 19.12 of the Certified Standing Orders applicable to the workcharged staff of the Ranjit Sagar Dam Project. After passing of the order of termination dated 30.12.1993, there was no communication between the Workman and the Management and for the first time, the Workman submitted a representation dated 11.03.1998 alongwith the medical certificates dated 14.02.1998 and 10.03.1998, i.e., after a period of more than four years and six months. This shows that the conduct of the Workman. The Workman in his claim statement in para-4 had taken a plea that his wife and son had approached the Management during the period 1993 to 1998 for informing it for grant of leave on the ground of illness of the Workman. Neither the son nor the wife of the Workman had appeared before C.W.P. No. 14095 of 2009 . -5- the Labour Court in support of this contention of the Workman. Rather, the Workman who appeared as WW-1 admitted in his cross-examination that he had not filed any application or supplied information to his superior qua medical leave. He had also admitted that he had not performed duty during the period 24.09.1993 to 30.12.1993, i.e., unathorised absence from duty by him. After submission of his representation dated 13.03.1998 alongwith the medical certificates dated 14.02.1998 and 10.03.1998 to prove his illness , neither the doctor had been examined by the Workman in support of medical certificates nor the original of the medical certificates had been produced before the Labour Court. Therefore, the factum of the Workman being sick and suffering from Tuberculosis cannot be said to have been proved before the Labour Court, meaning thereby that no reasonable explanation had been submitted by the Workman with regard to his cause(s) of absence from duty and silence of the Workman for four years and six months from the date of his termination till the date of his submitting a representation. The conclusion, thus, drawn by the Labour Court with regard to abandonment of job by the Workman is fully justified and does not call for any interference by this Court. The contention of counsel for the Workman that the termination of the services of the Workman is not in consonance with the principles of natural justice as no disciplinary proceedings had been initiated. This contention of counsel for the Workman cannot be accepted. There is no dispute that the Certified Standing Orders of RSDC are applicable to the Workman and other workcharged employees. Clause 19 of the RSDC provides for the procedure for grant of leave. Clause 19.12 provides that if a Workman remains absent beyond the period of granted leave then he shall be liable to loose his lien on the appointment unless he submits a convincing explanation qua cause(s) of his absence to the satisfaction of the Executive C.W.P. No. 14095 of 2009 . -6- Engineer (Incharge). It further provides that before terminating the lien of the Workman, he shall be served with a show cause notice by the competent authority under registered post calling upon the Workman to resume duties within a period of ten days. Clause 19.12 thus fulfils the requirement of principles of natural justice. An opportunity has to be given, as per this clause of the Certified Standing Orders to the employee to firstly join duties within ten days, thus, intimating about his unauthorised absent from duty and then if he so joins, he has an opportunity to submit his explanation qua cause(s) of his absence to the satisfaction of the Executive Engineer (Incharge). An employee cannot just sit at home without informing his employer that he would not be able to work on a particular day and for a particular period. He is required to move an application for grant of leave and only when the same is allowed, he can proceed to avail of the said leave. Unfortunately, the Workman did not apply for leave to the Management nor did he sent any intimation regarding his illness. Not only this despite of sending him registered notices dated 21.10.1993 and 06.11.1993 (Ex.R-1 and Ex.R-2 respectively) by the Management, calling upon him to resume duties within ten days, the Workman failed to respond to the same. The principles of natural justice, therefore, stood fully complied with, firstly, the mandate of Clause 19.12 of the Certified Standing Orders of the RSDC stood complied with and secondly, with regard to the principle of being heard and submitting his explanation also stood adhered to. Under these circumstances, the submission of the Workman that no departmental proceeding was held and, therefore, his termination is bad cannot be accepted to be correct. The requirement of law for any rule to be in accordance with the constitutional protection provided under Articles 14 and 21 of the Constitution of India is the compliance of the principles of natural justice and reasonableness. Clause C.W.P. No. 14095 of 2009 . -7- 19.12 of the Certified Standing Orders of the RSDC cannot be said to be unreasonable or not complied with the principles of natural justice and thus if the said provision has been complying with as in the case of the Workman, it cannot be said that the termination of services of the Workman was not in accordance with law. According to the said clause of the Certified Standing Orders, the Workman was required to apply for leave, which the Workman failed to do so. Clause 19.10 of the Certified Standing Orders provides for procedure for grant of leave to all workcharged employees of Ranjit Sagar Dam Project. In the light of the above, as the termination of the services of the Workman was in consonance with the certified standing orders as applicable to the Workman, the same cannot be said to be illegal or not in accordance with law. Thus, the finding returned by the Labour Court in this regard also does not call for any interference by this Court. As regards the contention of counsel for the Workman that abandonment of job by the Workman would amount to retrenchment, if his name is struck off on the ground of abandonment of job and since the provisions of Section 25-F of the Act have not been complied with as no retrenchment compensation was paid to the Workman, he would be entitled to reinstatement in service, also cannot be accepted for the simple reason that the termination of the Workman is in consonance with the Certified Standing Orders as applicable to the Workman. The judgments in the cases of Dhani Ram and others (supra), The Management of M/s Escorts Limited Faridabad (supra) and D.K. Yadav (supra), would not be applicable to the case of the Workman in the given facts and circumstances. All these judgments are distinguishable on facts. In the case of Delhi Cloth and General Mills Company Limited (supra), Hon'ble the Supreme Court had on consideration of the facts of the C.W.P. No. 14095 of 2009 . -8- case come to the conclusion in para-13 of the judgment that the order striking off the name of the Workman from the rolls was not in consonance with the standing orders applicable to the Workman, which provided for striking off the name of the Workman for absence for more than eight consecutive days . Hon'ble the Supreme Court returned a finding of fact that the Workman had not absented for more than eight consecutive days and thus the termination was held to be bad. However, a perusal of finding of the fact would show that the Workman had immediately after his termination put forth his claim with the Management, whereas in the present case, there is an inordinate delay of four years and six months. In the case of D.K. Yadav (supra), Hon'ble the Supreme Court, while considering the position with regard to the termination of services on the ground of absence from duty has in paras-9 and 10 held as follows :- “9. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. 10. Therefore fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural C.W.P. No. 14095 of 2009 . -9- justice. Art. 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence Art. 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just, fair and reasonable.” A perusal of the above would show that Hon'ble the Supreme Court has laid down the law that the principles of natural justice need to be complied with and any law made or action taken by the employer must be fair, just and reasonable. While applying this principle to the facts and circumstances of that case, Hon'ble the Supreme Court in para-12 observed as follows :- “12. In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. 13 of the certified standing orders to terminate the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Art. 14. When so read the impugned action is violative of the principles of natural justice.” C.W.P. No. 14095 of 2009 . -10- A perusal of the above leaves no manner of doubt that the requirement of any law made or action taken by the employer, if it fulfils the principles of natural justice would be just and fair and not illegal. The tests, thus, laid down by Hon'ble the Supreme Court has been fully satisfied in the case in hand, vide Clause 19.12 of the Certified Standing Orders of the RSDC, which have been fully complied with in letter and spirit by the Management by calling upon the Workman to resume duties by sending registered notices dated 21.10.1993 and 06.11.1993 (Ex.R-1 and Ex.R-2 respectively). This judgment, therefore, cannot be pressed into service to hold the termination of the services of the Workman as illegal or in violation of the principles of natural justice. In the cases of Dhani Ram and others (supra), and The Management of M/s Escorts Limited, Faridabad, (supra), the termination of the services of the Workman were held to be in violation of the provisions of the Industrial Disputes Act, 1947, as the name of the Workmen were struck off the rolls without granting them an opportunity of being heard or without calling upon their explanations for absence from duty. Thus, the termination of services of the Workmen in these two cases cannot be said to be in accordance with law as the principles of natural justice were violated by the employers, while terminating the services of the Workmen. It is now well settled that the Labour Court can even, where it holds that no inquiry has been held or the inquiry, if held, is not in accordance with law, can still proceed to decide on the basis of the pleadings and evidence led by the parties as to whether the Order of termination of the Workman is justified or not. Merely because no inquiry has been held, as mandated under the statutory Rules governing the service, or that inquiry held was not in accordance with law, does not preclude the Labour Court from C.W.P. No. 14095 of 2009 . -11- going into the merits with regard to the justification of the passing of the Order of termination. Section 11-A of the Industrial Disputes Act gives ample powers to the Labour Court to enquire into and satisfy itself whether the Order of discharge or dismissal was justified or not. In the cases, where no domestic inquiry is held against the Workman, the employer has right to adduce evidence before the Labour Court to justify its action. Reference at this stage can be made to the judgments of Hon'ble the Supreme Court in the case of Workmen of Motipur Sugar Factory (Private) Limited Versus Motipur Sugar Factory, 1965 (3) SCR 588, where it was held as follows :- “It is now well-settled by a number of decisions of this Court that where an employer has failed to make an inquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal where domestic inquiry has been properly held (see Indian Iron and Steel Co. vs. Their Workmen 1958 SCR 667) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s Sasa Musa Sugar Works (P) Limited vs. Shobrati Khan, 1959 Supp. SCR 836, Phulbari Tea Estate vs. Its Workmen, 1960 (1) SCR 32, and The Punjab National Bank Limited vs. Its Workmen, 1960 (1) SCR 806. These three cases were further considered by this Court in Bharat Sugar Mills Limited vs. Shri Jai Singh, 1962 (3) SCR 684, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha vs. Belaund Sugar Co., 1954 LAC 697. It was pointed out that “the import effect of commission to hold an enquiry was merely this : that the Tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence C.W.P. No. 14095 of 2009 . -12- adduced whether the charges have really been made.” It is true that three of these cases, except Phulbari Tea Estate's case, were on applications under Section 33 of the Industrial Disputes Act, 1947. But in principle, we see no difference whether the matter comes before the Tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's case was on a reference under Section 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no eqnuiry and in either case the Tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the Tribunal that on facts the order of dismissal or discharge was proper.” Similarly, where the domestic inquiry is found to be defective and not in accordance with law, the employer is not stopped from leading evidence before the Labour Court, justifying the Order of termination and on the basis of the said evidence led by the parties, if the Order is found to be justified, Order of termination can be upheld by the Labour Court. Hon'ble the Supreme Court in case of Workmen of M/s Firestone Tyre and Rubber Company of India (P) Limited Versus The Management and others, 1973 (3), SCR, 587, has laid down ten broad principles by exhaustively referring to various decisions of Hon'ble the Supreme Court, which gave a clear picture of the principles governing the jurisdiction of the Tribunal, when adjudicating upon disputes relating to dismissal