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

The appellant is a Government company within the meaning of Section 617 of the Companies Act. It carries on construction activities at various sites throughout the country and abroad. The respondent-Union represents the cause of 168 muster roll employees. The respondents were working at the bridge construction unit of the appellant at Kanpur in various capacities. The terms and conditions of employees of the appellant are governed by Standing Orders Certified under the U.P. Industrial Employment (Standing Orders)L-2.12 of whichworkman who remains absent from duty without leave or in excess of the period of leave originally sanctioned or subsequently extended for more than 10 consecutive extended for more than 10 consecutive days, shall be deemed to have left the services of the corporation on his own accord, without notice, thereby terminating his contract of service with the corporation and his home will accordingly be struck of the rolls.From 12th October 1995 the respondents-workmen did not attend their jobs. On 18th October 1995 the appellant issued an order which isof the workmen working at Betwa Bridge, Arichghat, Jhansi are absenting from duty since 12.10.1995. Direction for smooth functioning of the work in the interest of the Corporation has already been given vide this Office Notice No. 1102/1E/126 dated 16.10.1995 to such workmen.In the light of the aforesaid, it is made clear that such of the workmen who do not present themselves for duty and do not perform work or discharge their duty, then in accordance with the provision contained in Clause L02.12 of the Certified Standing Order of the U.P. State Bridge Corporation Ltd. [such of the workmen, who are continuously absent for more than 10 days, in respect of them, it shall be presumed that they have left the services of the Corporation without any notice and thus, their contract of service with the Corporation has come to an end and accordingly their names from the muster roll shall be removed] action shall be taken in the interest of the22nd December 1995 as amended on 28th December 1995 a similar notice was published in a Hindi Newspaper which also stated that if the workmen whose names were appended to the notice did not report for duty within a period of three days from the date of the publication of the notice, it would be presumed that they had abandoned their services which the Corporation without notice and their contract of service would come to an end and their names would be removed from the muster roll. According to the appellant despite the repeated notices the workmen continued to absent themselves and ultimately on 19th January 1996 an order was issued putting an end to the services of 168 workmen on the presumption that they had abandoned their services with the Corporation on their own.4. On 9th May, 1996, one of the workmen whose services were so terminated, namely Anand Prakash filed a writ petition in the High Court before the Lucknow Bench challenging the order of termination. The writ petition was dismissed on the ground that the workman could raise an industrial dispute if he so desired. A second writ petition was filed by the respondent-Union in the High Court at Allahabad. This writ petition was allowed by orders which now are the subject matter of challenge beforelearned Single Judge rejected the preliminary objections raised by the appellant that the writ petition was not maintainable, inter-alia, on the grounds that the Corporation was not a State within the meaning of Article 12 and that an un-registered Union did not have the locus to represent the workmen"s cause. It is not necessary to consider the reasoning of the learned Single Judge as neither of these points were raised before us by the appellant. On the question of the alternative remedy which was available to the workmen under the Industrial Disputes Act, the learned Single Judge was of the view that the case did not involved any investigation into nor determination of disputed questions of fact and that since the writ petition was moved in 1995 and a long time had lapsed the Court was justified in exercising its discretion under Article 226 to entertain and dispose of the dispute. It was also held that although in Anand Prakash"s case, the writ petition raising the same issue had been dismissed, the second writ petition challenging the same order was not barred by the principle of res-judicata particularly when no decision had been taken by the Court while dismissing Anand Prakashs writ petition. On the other hand although the order in Anand Prakash should not be affected in these proceedings, nevertheless, the Learned Judge held, since the decision of the High Court in the second writ petition would be binding, it would be an "infructuous exercise and mere formality" if Anand Prakash were driven to a Labour Court causing him to "suffer unnecessarythe merits, the learned Single Judge came to the conclusion that the word "absence" did not by self mean "abandonment of service" and when an employee went on strike it was not the intention to abandon service. It was said that "Resorting to strike is neither misuse of leave nor over staying of leave. Standing order does not provide for any provision as to how the question of strike is to be dealt with." It was further said that the strike was not illegal as no notice was required to be given to the respondent under Section 22 of the Industrial Disputes Act, 1947. It was also held that in any event-whether a strike was illegal or legal - it did not amount to abandonment of service justifying action under L-2.12. At the highest, it would be an action of misconduct for which a punishment was provided under the Standing Orders after an inquiry. As there was admittedly no inquiry before the services of the workmen were terminated, therefore, the impugned order of termination was also held to have been passed in violation of principles of natural justice. Finally, it was held that the order was also bad because it did not specify the period during which the workmen were supposed to be absent and, therefore, the order was not an order within the meaning of clause L-2.12 and could not be sustained. The order terminating their services was accordingly quashed and it was directed that the workmen including the said Anand Prakash, would be deemed to be in service and "be treated as on continuous service with all notional service benefits, except however, that they would not be entitled to any payment of arrears for the period during which they did not work actually, Except that each of them would be entitled to a compensation for the whole period assessed at Rs. 5,000/-appellants appeal was rejected by the Division Bench. The Division Bench has given brief reasons for upholding the decision of the learned Single Judge. In addition, note was taken of the appellants submission that the project being completed, there was no question of appointing the respondents in any other project. This submission was however rejected on the ground that there was no specific pleading to this effect and no details had been given of the project nor of the employees engaged therein nor were the appointment letters of the respondents produced.

Reasoning:
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.