IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17505 of 2000 Date of decision: 21.08.2009 Chander Kant …Petitioner versus Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad and another. .....Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr. Lokesh Sinhal, Advocate, for the petitioner. Mr.Amarjit Singh Chadha, Advocate with Mr. Surjit Singh Walia, Advocate, for the respondent No.2 ---- 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. 1. The challenge in the writ petition is to a direction for compensation of 60,000 rupees in lieu of reinstatement. The workman’s complaint is that he had been employed as Operator/Grinderman w.e.f. 04.04.1989, but his services were terminated without any reason in February, 1993. The response by the management was that it was not a case of termination but a case of abandonment of service, when the workman had absented himself from duty on 05.02.1993 without applying for leave and stayed beyond a period of 10 days without obtaining sanction for leave. The respondent had issued a telegram on 26.02.1993 and gave again a letter on 02.03.1993 directing the workman to join the service and in default, reminding the workman that as per the Civil Writ Petition No.17505 of 2000 - 2 - relevant Standing Orders under Clause 6(g) the name would be struck off. 2. The workman had a justification for his absence that his wife had died on 10.02.1993 due to burn injuries which was the basis of registration of FIR and prosecution for offence under Section 302 IPC against the workman. The workman had himself suffered burn injuries and remained in hospital from 09.02.1993 to 24.02.1993. He was later taken into custody by police and after 26 days, he came out on bail. He went to the office to find out that his name had been struck off on 09.03.1993. He had been persisting with the management for taking him back and the management which was assuring him of due consideration for reinstatement, did not offer employment that impelled the workman to issue a notice on 09.03.1994 after nearly a period of 1 ½ years. The delay was on account of the assurances which the management was giving that they would take positive decision and only when they failed to reinstate him, he was constrainted to issue notice and later obtained a reference for adjudication before the Labour Court. 3. The Labour Court found that the Standing Orders themselves cannot be the basis for treating the absence of a workman as the voluntary abandonment and rules of natural justice must be read into the Standing Orders and the termination made without any form of enquiry, was bad in law but however, finding that there was no justification for a delay of 1 ½ years in issuing notice and seeking for a reference, awarded only the relief of compensation in lieu of reinstatement. Civil Writ Petition No.17505 of 2000 - 3 - 4. The learned counsel appearing for the workman contends in the writ petition that the finding regarding the invalid termination of the workman by the management had itself not been challenged by the management and therefore, the issue had become final. The only question was whether under the given facts and circumstances, the mere fact that there was a delay of 1 ½ years in issuing notice disentitled the workman to claim reinstatement and whether under such circumstances compensation was adequate remedy. The learned counsel appearing for the management would, however, submit that the expression ‘termination’ itself ought not to be applied for what the respondent had been pleading for was only that by virtue of the Standing Orders, the conduct of the workman in not applying for leave beyond 10 days entitled automatic removal from the rolls and therefore, the removal from service ought not to be treated as retrenchment. 5. If we notice that the ultimate decision was only compensation and there was no direction for reinstatement, it shall be permissible, in my view, for the respondent to contend that the finding relating to the nature of termination was wrong, even while supporting the ultimate conclusion that the workman was not entitled to reinstatement. After all, when the relief of reinstatement had been refused, the management cannot be said to be an aggrieved party against the ultimate decision and could urge that the reasoning given was not correct. I have, therefore, permitted the respondent’s counsel to argue also on the justification for refusal of relief of reinstatement. Civil Writ Petition No.17505 of 2000 - 4 - 6. Firstly, if there had been a delay of 1 ½ years in issuing the demand notice and seeking for a reference, that by itself, in my view, ought not to be a ground for refusal for consideration of the case for reinstatement, if there was a reasonable justification for the delay. In this case, it is an admitted fact that the absence from duty was occasioned on account of the unfortunate death of the wife of the workman and the subsequent registration of complaint for the offence of murder and also the hospitalization on account of injuries. It is in evidence that the workman approached the management immediately after he was discharged from hospital and that was when he came to know that his name had been stuck off. Significantly, even the fact that the workman, who had worked in the factory for more than four years, was not informed through writing that his name had been struck off. Under such a circumstance, the contention of the workman that he was being assured periodically that his claim for reinstatement was being considered, can not be untrue. 7. Secondly, it should be seen whether by virtue of clause 7(g) of the Standing Orders, by the only fact that the workman had not applied for leave, his name could be struck off. There is ample authority for the proposition that the principle of natural justice shall always be read into the Standing Orders before the clause for an automatic termination takes effect. In this case, each party had his own justification. If the workman could not immediately report his absence or seek for sanction for his leave, it was on account of the death of his wife, registration of criminal case for offence under Section 302 IPC and Civil Writ Petition No.17505 of 2000 - 5 - hospitalization with burn injuries. All the incidents are admitted facts. As far as the management was concerned although the facts were admitted, they were not known at that time when the workman had remained absence and hence they had sent a telegram to the workman to return for duty. The did not know also the cause for absence of the workman when they issued a notice on 02.03.1993 and they were not relying on a Standing Order for the name to be struck off automatically. On the other hand, it was a case where communications had been sent to the last known address and the decision to apply the relevant Standing Orders from their perspective on the facts not known was perfectly justified. 8. Between the workman’s expectations that he shall be taken back into employment and the management's stand that they acted reasonably by issuing telegram and notice and therefore, there was justification for applying the Standing Orders, there lies a median that shall show what is just. Even the decisions cited by the learned counsel appearing for the respondent points out to the specific instances when such like Standing Orders could be applied and when a judicial intervention would still be possible. In M/s Lakshmi Precision Screws Ltd. Versus Ram Bahagat-2002(5) SLR 612, the Hon'ble Supreme Court was dealing with the case, where a workman had not reported for duty on one day when a letter had been sent to him to report back within 98 hours and tender explanation. It was not done and his name had been struck off. After two months, the workman demanded that he be taken back in service. The management refused and the workman sought reference on Civil Writ Petition No.17505 of 2000 - 6 - the ground that he had remained absent from duty on account of his illness. The Labour Court had directed reinstatement with a finding that the action of the management was not justified. The High Court concurred in the conclusion. The Hon'ble Supreme Court refused to interfere by holding that arbitrariness is antithesis to rule of law, equity, fair play and justice-contract of employment there must be, but it cannot be devoid of the basic principles of the concept of justice. The award of the Labour Court was allowed to stand. In Scooters India Ltd. Versus M.Mohammed Yaqub and another-2001-I-LLJ 7, the Hon'ble Supreme Court again held that absence of a workman from duty without leave could not result in automatic termination on the basis of Standing Orders, the dismissal without notice was arbitrary. The distinction which however, the learned counsel appearing for the management would urge from the situations that the respective decisions referred to above, was that the management had in this case actually issued notices and only after finding that he did not respond, it proceeded to terminate him from service. The learned counsel for the management relied on Syndicate Bank Versus General Secretary, Syndicate Bank Staff Association and another-2000-I-LLJ 236, that absence of a workman for a period of more than 90 days without sanctioned leave resulted in termination of service in a case where the contract of employment was regulated by a bipartite settlement that provided for deemed voluntary retirement for unauthorized absence of more than 90 days. The extreme situation of an absence for over 90 days unauthorizedly does not obtain in this case and therefore, the law that was being applied in that case by the Hon'ble Civil Writ Petition No.17505 of 2000 - 7 - Supreme Court ought not to be held out against the workman. The decision relied on by the Labour Court to characterize the conduct of the management as unreasonable and arbitrary viz., D.K.Yadav Versus J.M.A. Industries Ltd.-1993-II-LLJ 696, the learned counsel sought to distinguish on the ground that in that case there had been no notice from the management and the termination of service was purely justified on the Standing Orders that provided for automatic termination. 9. I have outlined above the respective circumstances under which the workman and the management stood by their acts which from the respective perspectives were in some way justified. The Labour Court was also justified in finding that the treatment of the workman as having abandoned the service by resort to the Standing Orders was improper in a case where the workman had been compelled for reasons beyond his control from reporting to duty. The management's decision to terminate was not taken in a trice but followed after a despatch of a telegram and a notice. Even then, in my view, it was still not fair that the decision to remove him from rolls must have been kept a secret till when a demand notice was issued and a reference was sought. If the management had valid justification to remove him from service by striking off his name from the rolls, they should have at least communicated the same by notice. In the absence of notice, the contention of the workman that he was being assured by the management that they would consider to take him back in his employment obtains credibility. If there was a delay, it was surely not extraordinary. The Labour Court's decision that the workman was entitled only to Civil Writ Petition No.17505 of 2000 - 8 - compensation cannot be justified in any way for the reason that there had been a delay of 1 ½ years. It is not an unexplained delay of a long period; there was valid justification for the same. However, the decision to compensate him instead of reinstatement shall be supported only for some other reason not founded in the Labour Court's judgment, that the conduct of the management though not justified could be seen in the context of its attempt to obtain the services of the workman by issuance of a telegram and a notice, as constituting extenuating circumstances that should relieve the management from compelling it to reinstate the workman. The compensation of 60,000 rupees for a person who had lost the job in the prime of his youth was grossly low. There had been parleys for settlement even before this Court, but it did not come to any fruitful end. I am of the view that an additional amount of Rs.3.5 lakh shall be directed to be paid, having regard to the contentions of the workman that the persons who are continuing in employment in the same establishment are drawing more than 15,000 rupees per month and he has still years of service left. This amount of Rs.3.5 lakh shall be paid within a period of eight weeks from the date of the order, failing which the amount shall bear simple interest of 7.5% per annum. The award of the Labour Court stands modified to provide for an additional sum of Rs.3.5 lakh. In all other respects, the award of the Labour Court is confirmed. 10. The writ petition is disposed of in the above terms. (K.KANNAN) JUDGE 21.08.2009 sanjeev