JUDGMENT
S.N. Srivastava, J.
1. Present petition has been preferred canvassing the validity of the award rendered by the labour court and published on 9.1.1986. The conclusions in the award leaned in favour of workman Mool Chand, herein arrayed as respondent No. 3 whereby the termination of the workman was held to be suffering from the taint of illegality on the premise that termination of service amounts to retrenchment and the provisions relating to retrenchment under Industrial Disputes Act were not honoured in compliance and consequently, the workman was directed to be reinstated with full wages retrospectively.
2. The matrix of necessary facts is that the workman-respondent No. 3 had entered the service in the year 1971 and at the relevant time, he was serving in the petitioner’s factory at Ghaziabad. He was gripped by illness and was sanctioned leave for the period 1.7.1982 and 10.7.1982. He again applied for extension of medical leave by means of an application. It appears from the record that after he had recouped from his illness, he reported for duty on 23.7.1982 only to find that his name had been struck off the attendance register. To make the long story short, the matter culminated in reference being made by the State Government to the Labour Court, Ghaziabad vide reference dated 8.12.1983 the text of which is that “whether termination/retrenchment dated 23.7.1982 was valid and legal and if not, what relief could be given to the petitioner.”
3. I have heard Sri Satish Chaturvedi, learned counsel for the petitioner and also Sri Y.K. Sinha, learned counsel appearing for the respondent – workman, Sri Satish Chaturvedi, learned counsel for the petitioner began his argument with the submission that termination of respondent’s services was predicated upon the certified standing order No. 10.1. The said order may usefully be excerpted below :
“10.1. In the event of a workman remaining absent, in excess of the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless (1) he returns within 10 calendar days of the expiry of the period of leave and (2) gives reasonable explanation for the satisfaction of the Manager of his inability to return before the expiry of the leave period.”
He further submitted that order of termination was passed as a sequel to the aforestated standing order and that since the workman had absented himself beyond 10 calendar days as prescribed in the standing order, his lien stood dismantled and by this reckoning, the learned counsel suggested that the termination of the petitioner cannot be branded as retrenchment. The learned counsel conceded that no opportunity for hearing was afforded ostensibly on the hypothesis that termination was automatic as a consequence of the provisions as envisaged in the standing orders. According to the learned counsel for the petitioner, the labour court erred in treating the order of termination dated 23.7.2000 as one passed in antagonism of the provisions of Section 6N of the U. P. Industrial Disputes Act read with Section 25F of the Industrial Disputes Act. In opposition, Sri Y. K. Sinha, contended that the labour court rightly converged to the conclusion that the impugned order of termination amounted to retrenchment. It is further submitted that the workman had explained the entire circumstances to the concerned authority that he was still bed-bound and was convalescing and by way of abundant caution, had sent an application for extension of leave on 14.7.1982 and ultimately, reported for duty on 23rd July, 1982, when he was declared medically fit by the doctor but when he went to report for duty on 23rd July, 1982, it was revealed to him that his name had been struck off the attendance register in terms of the certified standing order and since he was not afforded opportunity, it amounted to retrenchment. The learned counsel further submitted that no opportunity was given to explain before termination of his service and therefore, the termination amounts to punishment brevi menu.
4. Before proceeding further, it would be appropriate to excerpt below for proper appraisement of the controversy involved in this petition, Section 2 (s) of the U. P. Industrial Disputes Act, 1947.
“(s) ‘Retrenchment’ means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but Hoes not include :
(i) voluntary retirement of the workman ; or
(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf.”
It brooks no dispute that the workman – respondent was a confirmed employee and his services were terminated, by taking recourse to certified standing order, for failure to report for duty within 10 days from the date of expiry of the sanctioned leave. It is also not repudiated that none of the postulates envisaged in Section 6N have been observed in compliance. Striking off the name of the workman from the rolls constitutes retrenchment has been countenanced by the Apex Court in its decision in Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherjee, 1977 (SC) 353 and it was held that striking off the name of the workman from the rolls by the management is termination of his service and such termination of service is retrenchment within the meaning of Section 2 (oo) of the Act. It was further held that there is nothing to show that the provisions of Section 25F(a) and (b) were complied with by the management in this case. The Apex Court further observed that the provisions of Section 25F(a), the proviso apart, and (b) are mandatory and any order of retrenchment, in violation of these two peremptory conditions precedent is invalid. The ratio flowing from the decision in C.M.W.P. 2100 of 1980, Afsar Mian v. Lab. Court, Bareilly, (Alld. H.C.), may also be referred to. The case of the workman in the case was that the striking off his name from the rolls of the company would entail termination of his services which in turn tantamount to retrenchment but pre-requisites of retrenchment as contained in the Industrial Disputes Act, 1947, were not complied with and, therefore, he claimed reinstatement with unbroken continuity in service and back wages. The quintessence of what was held in this case was that the present was a case of termination of service/ retrenchment of the petitioner which was an act carried out without observing the pre-requisites of a valid termination/ retrenchment contemplated under Section 25F of the Central Act or Section 6N of the U. P. Act. It was held that the termination/retrenchment has to be held void ab initio and the petitioner was liable to be reinstated. Yet another case on the point is the decision in Bhikoba Shanker v. Mohan Lal Punchand, AIR 1982 SC 854. In this case, it was held by the Apex Court that there was no dispute that the appellant would be a workman within the meaning of the expression in Section 2 (s) of the Act. The Apex Court further held that termination in the case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid. Many other decisions have been cited and I refrain from making copious citation to avoid bulk to the Judgment.
5. Having considered the matter in all its ramifications, the termination of the workman-respondent is indubitably a case of retrenchment as the impugned order was passed without observing the pre-requlsites of a valid termination/retrenchment contemplated in Section 6N of the U. P. Act or Section 25F of the Central Act and, therefore, the labour court rightly converged to the conclusion on the basis of reasoning recorded in the award.
6. The second limb of the argument advanced by the learned counsel for the petitioner is that opportunity of hearing was required to be given to the respondent-workman inasmuch as certified standing order 10.1 admits of no ambiguity and clearly envisages that when in the event of workman remaining absent in excess of the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment. I have considered this argument in all its ramifications and am pursuaded to the view that absence from duty after expiry of the sanctioned leave may, in the present case, be a case verging on misconduct but it cannot be magnified beyond all proportions to warrant penalties of termination. If at all, his absence from duty was to be treated as un-authorised, it was incumbent upon the competent authority to pass appropriate order, when the respondent workman had reported for duty on 23rd July, only after receiving the explanation and weighing into the pros and cons of the explanation so submitted. It may usefully be stated here that observance of principles of natural justice and giving reasonable opportunity to explain/controvert before the order of termination is passed, is implicit in the certified standing order. There is no quarrel with the proposition that if a confirmed employee of an establishment has to be divested of his livelihood, the right of explanation/opportunity of hearing cannot be denied on the fallacy that the workman had joined after 10 calendar days and absented himself unauthorisedly. Article 14 read with Article 21 of the Constitution of India leaves no ambiguity that if an employee is sought to be deprived of his right to livelihood, as an integral part of the opportunity, the principles of natural justice have to be followed. The present case is not a case in which termination order was passed merely on the basis of loss of lien but the genesis of termination is not far to seek and it is on account of workman’s remaining absent after expiry of the sanctioned leave. In the instant case, it transpires from the record that the petitioner reported for duty on 23rd July but till that date, order of termination had not been passed and on that date, it was informed that his name had been struck off the attendance register. Action in terminating the services of the respondent workman without observing the rules of natural justice is purely and surely arbitrary in nature. In my view, expiry of 10 days in the instant case does not bring about automatic loss of lien and consequent termination and my above view receives reinforcement from the ratio flowing from the decision in D.K. Yadav v. J.M.A. Industries Ltd., 1993 (67) FLR SC 111. The relevant observation made in the aforestated decision should be usefully quoted below:
“……………. His contention that expiry of eight days’ absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance. The Constitution Bench specifically held that the right of the employer given under the standing orders gets effected by statutory operation. In Robert D’Souza’s case (supra) in para 7, this Court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done. It was further held that striking off the name from the rolls for unauthorized absence from duty amounted to termination of service and absence from duty for 8 consecutive days amounts to misconduct and termination of service on such grounds without complying with minimum principles of natural justice would not be justified. In Shambhunath’s case three Judges’ Bench held that striking off the name of the workman for absence of leave itself amounted to retrenchment. In H.D. Singh v. Reserve Bank of India and Ors. (supra), this Court held that striking off the name from the rolls amounts to an arbitrary action.
…………. 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 Article 14 and such law would be liable to be tested on the anvil of Article 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 Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive.
Article 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 conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 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 Article 14 and the procedure prescribed by law must be just, fair and reasonable.”
The above decision was noticed with approval in a recent decision of the Apex Court in Lakshmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552. Para 16 of the decision being relevant is quoted below :
“16. Having regard to the well-settled principle of law as in Yadav the decision to terminate by reason of a presumption as noticed above, we cannot but lend concurrence to the conclusion of the High Court that the action is purely and surely arbitrary in nature. Arbitrariness is an antithesis to rule of law, equity, fair play and justice – contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice oriented approach as is the present trend in Indian Jurisprudence shall have to breed as an in-built requirement of the basic concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law. The letter dated 17th October, cannot by any stretch be treated to be an opportunity since it is only on the fourth day that such a letter was sent – the action of the appellant herein stands out to be devoid of any justification, neither it depicts acceptability of the doctrine of natural justice or the concept of fairness, arbitrariness is writ large and we confirm the finding of the High Court as also that of the learned trial Judge and the Tribunal as regards the issue as noticed above.”
7. The learned counsel for the petitioner has also placed credence on the judgment of single Judge of this Court in Bharat Heavy Electrical Ltd. v. Labour Court, U, P. at Meerut and Ors., 1999 (4) AWC 3431 : 1999 (3) UPLBEC 2098. This decision also lends support to the case of the workman. Para 38 of the said judgment quintessentially spells out that inspite of the fact that striking off the name of respondent was not retrenchment, the B.H.E.L. had to treat the respondent workman in service. If he has satisfactorily explained the circumstances for his absence. Although in this case the order of reinstatement passed by the labour court was not quashed but it was modified to that extent. In the case in hand, the workman had submitted his case explaining the circumstances and the labour court took into reckoning those circumstances before making award. This judgment enures to the benefit of the respondent – workman and is unavailing to the petitioner.
8. It has been averred in the affidavit sworn on 2nd July, 2001 by the workman respondent that earlier the respondent was being paid a sum of Rs. 672 per month in terms of the interim order dated 22.5.1986 as amended on 21.1.1998 but not a single penny is being paid since May, 2000. There is no material on the record to vouch for the fact that the respondent workman was gainfully employed any where during the period he remained out of employment. It transpires from the record that this Court while admitting the petition, had passed an interim order dated 22nd May, 1986, staying operation of the award dated 9.1.1986 but this order came to be modified by means of the order dated 21.1.1988 by which it was provided that the operation of the award dated 9.1.1986 shall continue to remain stayed provided the petitioners pay to the respondent workman namely Mool Chandra his wages as from the date of the award dated 9.1.1986 uptodate and continue paying him such wages until the final decision of the writ petition. There was further direction to deposit the unpaid wages within six weeks and the respondent was accorded the liberty to withdraw the same. It would thus appear that substantial part of the wages has already been paid to the workman and according to the own admission as contained in the affidavit sworn by the respondent, further payment has been stopped with effect from May, 2000. In the light of the above discussion, I am of the view that the labour court has rightly awarded full back wages to the respondent-workman.
9. As a result of foregoing discussion, the petition falls and is dismissed. The award rendered by the labour court is upheld. Interim order staying operation of the award is hereby vacated attended with the direction that steps shall be initiated for implementation of the, award in toto.