Case: D. K. Yadav Vs. J.M.A. Industries Limited

This appeal by special leave is against the award of the Labour Court, Haryana at Faridabad dated April 19, 1982 which was published in the State Gazette on August 10, 1982. It upheld the termination of the appellants service as legal and valid. The respondent, by its letter dated December 12, 1980 which was received by the appellant on December 19, 1980, intimated that the appellant wilfully absented from duty continuously for more than 8 days from December 3, 1980 without leave or prior information or intimation for previous permission from the management and, therefore,d to have left the service of the company on your own account and lost your lien and the appointment with effect from December 3,In support thereof reliance was placed on Cl. 13 (2) (iv) of its Certified Standing Order. The appellant averred that despite his reporting to duty on December 3, 1980 and every day continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register. He pleaded that he was not permitted to join duty without assigning any reasons. His letter of December 3, 1980 was marked herein as Annexure A wherein he has explained the circumstances in which he was prevented to join duty. The Tribunal found that the appellant has failed to prove his case. The action of the respondent is in accordance with the Standing Orders and it is not a termination nor retrenchment under the Industrial Disputes Act, 1947, for short the Act. The appellant in terms of standing orders lost his lien on his appointment and so is not entitled to reinstatement. Clause 13(2)(iv) Standing Order reads thus :a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless (a) he returns within 8 calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended as the case may be; and (b) he explains to the satisfaction of the manager/management the reasons of his absence or his inability to return on the expiry of the leave, as the case may be. The workman not reporting for duty within 8 calendar days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the Muster Rolls in such anA reading thereof does indicates that if a workman remains absent without sanction of leave of beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calendar days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the Manager/Management of his reasons for absence or inability to return to the duty on the expiry of the leave. On completion of eight calendar days absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from the Muster Rolls. 2. Section2 (oo) of the Act defines Retrenchment which means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include) voluntary retirement of the workman; or(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or(c) termination of the service of a workman on the ground of continued ill healthSection 25 F prescribes mandatory procedure to be followed before the retrenchment becomes valid and legal and violation thereof visits with invalidation of the action with consequential results

Court's reasoning:
13. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T C. v. D.T.C. Mazdoor Congress (supra) the Constitution Bench, per majority, held that termination of the service of a workman giving one months notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside14. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellants 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 he be 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 Order to terminate with 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 justice15. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct and domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is the blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order.