JUDGMENT
R.L. Khurana, J.
1. Being aggrieved by the award dated September 29, 1997 of the Labour Court, Shimla, the petitioner-company has approached this Court for quashing and setting aside the said award.
2. One Ram Swaroop son of Hari Ram was employed by the petitioner-company sometime in the year 1987. He was allegedly discharging the duties and function of a Weaver. His monthly salary was Rs. 600 per month. His services were abruptly and illegally terminated by the petitioner-company with effect from May 18, 1991.
3. On an industrial dispute having been raised by the said Ram Swaroop, the matter was referred to the Labour Court under Section 10 of the Industrial Disputes Act, 1947 (for short, the Act). The case set up by the workman Ram Swaroop was that he had organised a Union of workers, which irked the Management since the workers had become alive to their demands. It was further pleaded that on May 10, 1991, his uncle had expired. He, therefore, proceeded on leave from May 13, 1991 to May 17, 1991. On his return on May 18, 1991, he was not allowed to join and instead was given the marching orders.
4. The petitioner-company admitted the termination of the workman with effect from May 18, 1991. It was averred that the workman was a habitual absentee from duty and a non-serious worker, and that the services were terminated validly.
5. The Labour Court on the basis of material placed before it came to the conclusion that the termination of the workman was illegal and bad. It, therefore, vide the impugned award after setting aside the termination order directed the reinstatement of the workman with full back wages as were drawn by him at the time of his termination with all consequential and collateral benefits admissible to him from time to time.
6. The workman Ram Swaroop, who was impleaded as respondent No. 2 in the present writ petition, died during the pendency of the present petition on January 29, 2002. His legal heirs were, therefore, impleaded as respondent Nos. 2(a) to 2(g) vide order of this Court dated June 6, 2003.
7. It was contended by the learned counsel for the petitioner-company that the workman was a habitual absentee. He failed to report for duty in spite of having been called upon to do so. He, therefore, must be deemed to have abandoned service voluntarily. Removal of his name from service was a mere formality and does not amount to retrenchment. In support of his contention, the learned counsel placed reliance on the decision of Bombay High Court in Managing Director v. Babasaheb Devgonda Patil 1988 LIC 288 and that of the Allahabad High Court in Kshetriya Sri Gandhi Ashram, Magahar v. Ram Samujh Maurya 1994-III-LLJ (Suppl)-598.
8. In the cases relied upon by the learned counsel for the petitioner-company, the workman therein had remained absent from duty for a period of 2 and 3 years without leave. The workman neither applied for leave nor cared to explain his absence. On these facts, it was held that the workman must be deemed to have abandoned service voluntarily and removal of their names from the roster was a mere formality not amounting to retrenchment.
9. In the present case, it is admitted case of the petitioner-company, as per the reply filed by it before the Labour Court, that the services of the petitioner were terminated with effect from May 18, 1991.
10. Annexure P5 is the letter dated June 5, 1991 issued by the petitioner-company terminating the services of the workman. It reads:
“Shivalik Knit Polyfabs Pvt. Ltd.
Manufacturers of HDPE/PP
Laminated Bags
Factory/Regd. Office 123,
Industrial Area
Mehatpur, Distt., Una, H.P.
Exhibit P. RW1/C
Dated June 5, 1991
Ref. No.: SKPPL/RS/P/3/91 UPC
To
Ram Swaroop,
V & PO Santokhgarh, Distt. Una, H.P.
Sub: Termination of service from May 18, 1991
It is intimated that you remained absent from your duties from May 18, 1991 without any intimation or permission from the Company. You also remained absent from duty from May 11, 12 & 13, 1991 without any intimation or permission and you were directed verbally on May 14, 1991 to get leave sanctioned as prior permission is necessary.
You were directed by our office letter No. SKPPL/RS/P/1/91 dated May 24, 1991 and letter No. SKPPL/RS/P/2/91 dated May 30, 1991 but no intimation from your end has been received in response to these letters. You have neither visited the office nor have sent any written intimation about the reason for your being absent from duty since May 18, 1991.
You were given a last opportunity to show-cause why you should not be terminated from your service, but you failed to avail that last opportunity.
You are hence terminated from your services with effect from May 18, 1991 the date from which you have been absenting yourself from duty. You can collect your pending dues from the office on any working day between 10.00 am to 2.00 p. m.
For Shivalik Knit Polyfabs Pvt. Ltd.
Sd/-Anuj Suri, Director.”
A bare perusal of Annexure P5 shows that it is not the case of voluntary abandonment of service by the workman but it is a case of termination.
11. Section 2(oo) of the Act defines “retrenchment” as under:
“(oo) ‘retrenchment’ 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-
(a) 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
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill health.”
12. Section 25-F of the Act which lays down conditions precedent to retrenchment of workman, provides:
“25-F. Conditions precedent to retrenchment of workmen. – No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official Gazette.”
13. Dealing with the meaning of the word “retrenchment” as defined under Section 2(op) of the Act, the Hon’ble Supreme Court in L. Robert D’Souza v. Executive Engineer, Southern Railway AIR 1982 SC 854 : 1982-I-LLJ-330, has held at p. 334 of LLJ:
“6………. The definition of expression ‘retrenchment’ in Section 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction. Therefore, we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the expected categories, i.e., (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) 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; (iv) or termination of the service on the ground of continued ill-health. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in Section 2(oo). It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment as held by this Court in Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherji AIR 1978 SC 8 : 1978-I-LLJ-17. We specifically refer to this case because the facts in the case before us are on all fours with the facts in the aforementioned cases and on parity of reasoning and judicial comity the same conclusion must follow unless something to the contrary is indicated. In that case respondent S.N. Mukherji who was recruited as a labourer came to be promoted in course of time to the post of Motion Setter. On October 1, 1964, pursuant to some re-organisation in the establishment the post of Motion Setter was abolished. The management offered employment to the respondent S.N. Mukherji on any other suitable post, which was indicated to be the post of Assistant Line Fixer (Assistant grade I) without loss of wages. He was to be on probation. The management found him unsuitable for this post even after extending the period of probation by 9 months and therefore offered him post of Fitter on the same pay which he, as a Motion Setter, used to get. The response of S.N. Mukherji to this offer was that he should be given a further opportunity to show his efficiency in his job and if he fails to improve, he would tender his resignation voluntarily. The management did not reply to the letter with the result that the workman did not report for work at the newly offered post. On January 19, 1966, the management wrote to the workman that his name has been struck off from the rolls with effect from August 24, 1995, for continued absence without intimation. Such termination of service was held to be covered by the expression ‘retrenchment’ and it was struck down on the ground that the pre-condition to valid retrenchment was not complied with. It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the Act. And here recall the order of termination of service of the appellant wherein it is stated that ‘you have absented yourself unauthorisedly from August 19, 1974 and hence your services are deemed to have been terminated from the day you have absented yourself. Is any other conclusion possible save and except the one recorded by this Court in Delhi Cloth & General Mills Ltd’s case (supra) that this constitutes retrenchment and for non- compliance with pre-condition, it is invalid.”
It was further held that absence without leave constitutes misconduct and it is not open to the employer to terminate the service without notice or inquiry or at any rate without complying with the minimum principle of natural justice.
14. Section 25-F of the Act clearly prescribes the mode, manner and methodology of terminating services of a temporary employee. Admittedly such procedure prescribed has not been complied with in the present case. Therefore, the Labour Court has rightly held the termination of the workman Ram Swaroop vide Annexure P5 to be illegal and bad. The workman was, therefore, rightly directed to be reinstated with full back wages and all other consequential and collateral benefits. Resultantly, the present petition being devoid of merits is dismissed with costs quantified at Rs. 5,500.
15. Since the workman has died, respondent Nos. 2(a) to 2(g) being his legal heirs would be entitled to the monetary benefits in respect of the deceased for the period May 19, 1991 till January 29, 2002, the date of death of the deceased workman less the amount, if any already paid/deposited by the petitioner- company.