Case: U.P. State Bridge Corporation Ltd.  Vs. U.P.Rajya Setu Nigam S.Karmachari Sangh

strike cannot amount to abandonment of service for the purpose of Clause L-2.12 of the Standing Orders (CSO). But was there a strike at all? Or was it mass absenteeism unconnected with the terms and conditions of service? 21. Besides the submission that a person on illegal strike does not abandon his job is erroneous. An illegal "strike cannot by definition be "authorised absence". It would be contradiction in terms. We may also draw support from Section 25-B which defines "continuous service" as "uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman". The specific exclusion of persons on illegal strike plainly means that the period a person is on illegal strike does not amount to service. Different considerations would not doubt prevail where the strike is legal. Workers on strike continue to be n service although they may have ceased work. It the strike is a legal one such cessation of work or refusal to continue would be absence authorised by law. Under CSO L-2.12 a presumption is to be drawn against an employee if such employee is unauthorisedly absent. Clearly, a person on illegal strike and a person on legal strike are both "absent", but the absence of the first is unauthorised and the second is not. CSO L-2.12 raises a presumption against the employee and it is for the employee to rebut that presumption by adducing the evidence. It is, therefore, imperative that the factual basis is determined by the appropriate forum. In any event the decisions cited by he learned counsel for the respondent as noted earlier, are factually distinguishable. In Express Newspapers (supra), there was no condition of service similar to Certified Standing Order L-2.12. The fact of strike was also not in dispute. The Management had issued notice terming the strike as unauthorised abandonment. In other words, abandonment was pleaded as a fact on the basis of the strike. The contention of the employer was that there was no order of termination of service by the employer but a relinquishment of service by the workmen. The submission was not accepted because "the respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasized the fact that the employment continued as far as they were concerned. The management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment". 22. The fact of strike was also admitted in G.T. Lad (supra). Here again there was no condition of service similar to CSO L-2.12. The Management had issued a notice calling upon the workmen to report within a specified period otherwise it would be construed as an abandonment. The workmen failed to report within the aforesaid period. The Management struck out the names of the workers from the rolls on the ground that the workmen were not interested in service and had totally abandoned it. This Court held that the abandonment was not a question of fact which was required to be proved. Where the only evidence was absence because of strike, there was no abandonment. It was also held, following Express Newspaper (supra) that it was not open to the company to introduce such changed terms and conditions of service pending an industrial dispute. 23. D.K. Yadav (supra) is an authority for the proposition that the principle of natural justice would have to be read in the Standing Orders. That was a case where there was a standing order similar to CSO L-2.12 except that 8 days margin was granted with which the workman was required to return and satisfactorily explain the reasons for his absence or inability to return after the expiry of leave. This view was reiterated in the later decision of this Court in Lakshmi Precision Screws Ltd. V. Ram Bhagat 2002 (6) SCC 552 where it was held that the element of natural justice was an in-built requirement of the Standing Orders. In this case, the appellant-Corporation had issued two notices calling upon the workmen represented by the respondent to return to duty. The workmen did not respondent to either of the notices. As we have noted it was not pleaded that the advertisement did not sufficiently comply with the principles of natural justice. The notice was issued giving an opportunity to the respondent to show cause why the presumption should not be drawn under CSO L-2.12. The respondent did not show cause. In the circumstances the Management drew the presumption in terms of the CSO. 24. The respondent said that the notice was invalid because it did not otherwise comply with the CSO L-2.12 because of the shortening of the period of absence. This was not an issue raised at any state. In any event, we do not see how the notice is not in compliance with the Certified Standing Orders as quoted earlier. 25. The final submission of the respondent was that the UPIDA provided for penalty after a departmental enquiry, in respect of the workman who may have gone on illegal strike and, therefore, there could be no termination of services on account of illegal strike. The submission is unacceptable as we have said there is no proof that the respondents were on strike at all. Besides, merely because the action is punishable does not mean that the consequence of an unauthorised absence is not available under the Certified Standing Orders if it so specifically provides. 26. In the circumstances, we have no hesitation in setting aside the decision of the High Court in dismissing the writ petition. This order will, however, not preclude the respondent-Union if it is otherwise so entitled to raise an industrial dispute under the UPIDA.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the present case, the nature of the employment of the workmen was in dispute. According to the appellant, the workmen had been appointed in connection with a particular project and there was no question of absorbing them or their continuing in service once the project was completed. Admittedly, when the matter was pending before the High Court, there were 29 such projects under execution or awarded. Accordingly to the respondent-workmen, they were appointed as regular employees and they cited orders by which some of them were transferred to various projects at various places. In answer to this the appellants said that although the appellant corporation tried to accommodate as many daily wagers as they could in any new project, they were always under compulsion to engage local people of the locality where work was awarded. There was as such no question of transfer of any workman from one project to another. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of thewas also a dispute as to the nature of the absence of the respondent-workmen. Correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent-Union has been relied upon by the respondent in support of the submission that the absence was really on account of a strike. It is also submitted that the correspondence indicated that notice of the strike had been given. To counter the statement made in the writ petition by the respondent that the workmen were on strike, the appellants had said that no notice of strike had been given and, therefore, the strike, if any, was illegal. Significantly, the High Court has not relied upon the correspondence nor has it come to any decision on the question whether the strike was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of respondent-workmen from work was because they were on strike.16. The High Court incorrectly applied the provisions of Section 22 of the Industrial Disputes Act, 1947 to hold that no notice of strike was necessary. It is conceded by the respondent that the operative Act was the UPIDA which differs materially, in this connection, with the Industrial Disputes Act. Under Section 22 of the Industrial Disputes Act, a notice of strike is required to be given, as held by the High Court, only in the case of any public utility service and the appellant corporation is not a public utility service. However, under Section 65 of the UPIDA the notice of strike is required to be given in respect of an industrial establishment. It is not argued on behalf of the respondent that the appellant-Corporation is not an industrial establishment. Whatever the legal consequences of not giving of such notice may be, it cannot be said in the circumstances that the employees were admittedly on strike as a matter ofjudgment of the High Court cannot be sustained on the ground of alternative remedy. When it was drawn to the attention of the High Court that a previous writ petition raising the same issue had been dismissed on the ground of the existence of an adequate alternative remedy, the High Court should not have continued to dispose of the matter itself under Article 226 and in effect set aside the decision in the previous writthe circumstances, we have no hesitation in setting aside the decision of the High Court in dismissing the writ petition. This order will, however, not preclude the respondent-Union if it is otherwise so entitled to raise an industrial dispute under the UPIDA.