1998(3) ALL MR 97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. NIJJAR, J.
Nivrutti Dattatraya Mule Vs. Managing Director, Shetkari Sahakari Sakhar Kharkhana Limited, Sangli & Ors.
Writ Petition No. 5294 of 1988
11th July, 1997
Petitioner Counsel: Mrs. NEELIMA KANETKAR
Respondent Counsel: Mrs. MEENA H. DOSHI
Bombay Industrial Relations Act (1946), Ss. 42(4), Proviso, 78 - Limitation - Absence without leave - Order of termination of services with effect from 22-7-1977 as per Standing Order - Approach notice given by employee to employer on 28-1-1978 for reinstatement - No settlement between parties - Application by employee before Labour Court u/s 48 - Held approach notice was time barred under R. 53 and hence application u/s 78 was not maintainable 1993 II CLR 116, 1969 II LLJ 24 and 1995 I CLR 84 foll.
1979 Lab. I.C. 290 [Para 8]
1993 II CLR 116 [Para 8]
1969 II LLJ 799 [Para 9]
1982(1) SCC 645 [Para 8]
1992 I LLJ 164 [Para 9]
1995 Lab.I.C. 498 [Para 9]
AIR 1994 SC 131 [Para 11]
1969 II LLJ 24 [Para 12]
1995 I CLR 84 [Para 12]
JUDGMENT :- The petitioner has filed this petition under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari/mandamus or any other writ, order or direction quashing the orders dated 30-11-1987 and 2-8-88 passed by respondent Nos. 3 and 2 respectively.
2. The petitioner states that he was an employee of respondent No.1 from 1965 as "Patakari". He was confirmed on his job in the year 1966. In the month of May, 1977 he was suffering from Jaundice. He, therefore, went on sanctioned sick leave from 18th May, 1977 to 3rd June, 1977. The leave was further sanctioned until 30th June, 1977. He remained absent till 29th July, 1977. On 22nd July, 1977 respondent No.1 sent a letter to the petitioner stating therein that he was absent from work unauthorisedly and without permission from 1-7-1977. He had not informed the respondent No.1 about his absence within 7 days. Therefore, in accordance with Standing Order No. 12(9) applicable to the employees he has lost the right to the service. Thus his services in the Lift Irrigation Department of the Factory were terminated with effect from 22nd July, 1977. This letter is received by the petitioner on 26th July, 1977. On 29th July, 1977 the petitioner reported for duty. The application is styled as joining report. It is stated that after availing sick leave from 1-7-1977 to 28th July, 1977 the petitioner has reported for duty on 29th July, 1977. It was requested that the petitioner be permitted to sign the muster. Along with the joining report leave application and medical certificate were also enclosed. On this very application an endorsement was submitted to the Managing Director stating therein that the petitioner is absent from duty without permission from 1-7-1977. He has not made application from the aforesaid date and for that reason in accordance with Standing Order No. 19(2) his services were terminated w.e.f. 22-7-1977. He has received the said order on 26th July, 1997. Thereafter on 29th July, 1977 he has made an application for sick leave from 1st July, 1977 to 28th July, 1977. It is further stated that he has made this application only after the termination of his services and, therefore, the said application cannot be taken into consideration. By letter dated 1-11-1977 the petitioner was informed that his services have been terminated w.e.f. 22-7-1977 in accordance with the standing order No. 12(9) for remaining absent from duty without permission. As the application made on 29th July, 1977 has been made after termination of service, the said application cannot be taken into consideration.
3. Feeling aggrieved the petitioner gave necessary approach notice on 28th Jan. 1978 under the provisions of the Bombay Industrial Relations Act, 1946, hereinafter referred to as "the BIR Act", to the respondent No.1 with a request to take him back in service. This is attached as Exhibit-E to the petition. Since no settlement was arrived at between the parties the petitioner filed an application under the BIR Act bearing No. 20 of 1978 before the Labour Court at Sangli. The Respondent No.1 filed the written statement and raised the contention that due approach notice under Section 42 of the BIR Act was not sent in time and, therefore, the application was not maintainable. Respondent No.1 also contended that the application before the Labour Court was also time barred and, therefore, not maintainable. Labour Court held that the approach notice was well within the period of limitation but further held that application bearing No.20 of 1978 was filed beyond the period of limitation. The petitioner filed writ petition No. 3785 of 1993 against the order of the Labour Court. The High Court by an order dated 12th April, 1995 remanded the matter to the Labour Court with a direction to dispose of the matter. The delay in filing the application has been condoned.
4. In the Labour Court the petitioner examined himself and one Shri Pandurang Govind Babar as witnesses on his behalf. Respondent No.1 examined Ramchandra Anna Lataka and Vilas Pandurang Ingale as witnesses on their behalf. The respondent No.1 contended before the Labour Court that the aforesaid notice dated 28-1-78 was beyond limitation. Thus the application deserves to be dismissed on this short ground. This contention was dealt with by Respondent No.3 on the basis of the earlier order passed on 4th August, 1980 by the predecessor of respondent No.3. In that order it was held that in view of the application dated 29th July, 1977, requirement of proviso to Section 42(4) of the BIR Act and Rule 53 were duly complied with as the said application dated 29th July, 1977 was made within 3 months of the date i.e. 23rd July, 1977 on which date the termination order was passed by the management. It was further held that the order dated 4th August, 1980 not having been challenged before the superior Courts, the same was binding on the parties. In view of the order of the Division Bench passed in Writ Petition No. 3785 of 1983 no argument could obviously be heard as to whether or not application to the Labour Court was within time or not, the same having been condoned by the High Court. After appreciating the evidence of all the parties, the Labour Court also came to the conclusion that the petitioner had failed to prove that he had gone to the office with an application for extension of leave accompanied by one Shri Sahebrao Pangude. It was found by the Labour Court that the statement made by the petitioner could not be relied upon. After further discussion of the evidence, the Labour Court came to the conclusion "I am of the opinion that the applicant has miserably failed that he had given an application for extension of leave in the office of the factory. He has taken a stand that he came along with Shri Sahebrao Pangude and presented the application to Shri Latke Saheb and Shri Ingale Saheb in the office but he has miserably failed to prove it. On the other hand, he has created such contradictions which goes to the root of the matter and creates a doubt whether the applicant who is speaking truth on this aspect of his presenting the application in the office before his leave was over". Thereafter the Labour Court holds that in view of Standing Order 9 an employee who was absenting himself without leave shall lose his lien on his appointment unless he gives an explanation to the satisfaction of the authorities granting leave within 7 days of the date of absence. The applicant approached the office of the factory only on 29th July, 1977. Thus it is held that the authority of the factory cannot be blamed as they have acted as per the Standing Order Sr. No. 9 in letter and spirit . The Labour Court further held that the provisions of Section 25F are mandatory in cases of overstay. It is also held that the petitioner remained absent without obtaining leave till 29th July, 1977. In paragraph 29 of the order the Labour Court has held "Considering the evidence on record and the false plea taken by the applicant that he had presented the application for extension of leave to the factory in the presence of Sahebrao Pangude I am of the opinion that it was in the control of the applicant to submit his application for leave to the factory officers. He has not done so but has falsely alleged that he had given the application but the Officers did not sanction it nor consider it. This cannot be accepted in this case". Keeping all the facts and circumstances in view the labour Court granted the relief of compensation in lieu of reinstatement. The workman was ordered to be paid Rs. 11,000/- equivalent to the retrenchment compensation.
5. Both the parties filed appeals against the order of the Labour Court. The petitioner filed Appeal (IC) No.1 of 1988 and Respondent No.1 filed Appeal (IC) No.21 of 1987. Both the appeals were heard together and the impugned order dated 2nd August, 1988 was passed. After hearing Counsel for the parties at length and considering all the facts and circumstances of the case as also the authorities cited by the parties appeal filed by the petitioner was dismissed. Appeal filed by the Respondent was allowed. The order of the Labour Court was set aside and the original application was dismissed. The Respondent was further directed to treat termination as discharge from service. They were also directed to take the name of the appellant-workman on the waiting list as per the provisions of the Standing Order 12 (10).
6. The contention raised by the respondent No.1 to the effect that the approach notice was beyond the period prescribed in the statute was accepted. It was accepted that the petitioner had made a clear and unambiguous averment that the necessary approach under Section 42 (4) of the BIR Act was sent on 28-1-78 and the notice was received by the karkhana on 30-1-78. He nowhere stated that the approach notice was given on 29th July, 1977. The document dated 28-1-78 is styled as approach notice. Thus the findings of the Labour Court to the effect that the application dated 29th July, 1977 should be treated as the approach notice were not accepted. It has been further observed by the Industrial Court that petitioner himself in the examination-in-chief has stated that the aforesaid notice was given by him on 28-1-78. Thus it was held that the petitioner cannot now be permitted to turn back and say that the approach was not made on 28-1-1978. Thus on his own pleadings and evidence the petitioner had confirmed that the necessary approach notice under Section 42(4) was given on 28-1-1978. Thus the finding of the Labour Court on this issue were reversed and it was held that the approach was beyond the statutory period of 3 months as provided in the Act. It is also held that there is no provision for condoning the delay in approach. Thus the original application was not maintainable and, therefore, the application had to be rejected on this ground alone. Having decided the issue of limitation in favour of the respondent No.1 the matter was again examined on merits. After examining the whole evidence again it was held that there is no corroboration to the story which has been put forward by the petitioner. The evidence of the management was unshakable. It was observed that apart from the fact that there was no corroboration to the word of petitioner his contradictory stands as to whether he had given application before or after the expiry of his previous leave i.e before or after 30-6-77 also makes his theory doubtful. Copy of any such application had not been produced on the ground that the petitioner had not maintained any copy of the same. It is further observed that : "In my opinion therefore, the learned Judge was absolutely correct in holding that the appellant had miserably failed to show that he had given any such application for extension of leave. This in other words means that the appellant was absent without leave and the respondent Karkhana was right in taking action against him for his absence without leave as per Standing Order 12 (9). The Industrial Court has further held that since there are no pleadings on the point of retrenchment no findings can be given to the effect that the termination in fact amounted to retrenchment. Thus the appeal filed by the petitioner was dismissed. The appeal filed by the Respondent No.1 was accepted.
7. Counsel for the petitioner has submitted that in fact there is no abandonment. Abandonment is a question of intention. The petitioner had no intention to abandon the job. He was ill. He was on sanctioned leave. However, he could not immediately join as his illness continued but as soon as he recovered he went to the factory and submitted the joining report on 29th July, 1977. Consequently the petitioner could not have been said to have abandoned the job. It is submitted that the petitioner has in fact not been dealt with on the ground of abandonment but has in fact been removed from service without complying with the rules of natural justice. Abandonment is governed by the Standing Order 12(9) whereas the case of the petitioner would fall under Standing Order 24 providing punishment for misconduct. Standing Order 23(f) provides that if an employee is absent without leave for more than 10 consecutive days or overstays sanctioned leave without sufficient grounds or proper or satisfactory explanation he shall be treated as having committed misconduct. Counsel has relied on a large number of judgements to show that abandonment is a matter of intention. The said intention cannot be shown to have been proved unless and until a proper enquiry is conducted or at least an explanation is sought from the employee in conformity with the principles of natural justice. In order to consider the aforesaid submissions of the Counsel, it is necessary to reproduce the relevant provisions of the Standing Order.
"12. Leave :...............
(9) If an employee absents himself without leave he shall lose his lien on his appointment unless he gives an explanation to the satisfaction of the authority granting leave within seven days of the date of the absence, about his inability to follow the prescribed procedure of obtaining leave of absence."
The following acts or omissions on the part of an employee shall amount to misconduct.
(a)...... to (e) .......
(f) habitual absence without leave, or absence without leave for more than ten consecutive days or overstaying sanctioned leave without sufficient grounds or proper or satisfactory explanation."
Counsel has relied on the following judgments.
8. 1979 Lab. I.C. 290 (G.T.Lad & Ors. v/s. Chemicals & Fibres India Ltd.) In paragraph 6 of this judgment it is held that in order to constitute abandonment there must be total or complete giving up of duties so as to indicate an intention not to resume the same. The inference that an employee has abandoned service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon services. Abandonment or relinquishment of service is always a question of intention and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case. In view of the discussion of the evidence by both the Labour Court and the Industrial Court these observations would have no application whatsoever to the facts and circumstances of this case. Both the Courts below have come to the conclusion that the petitioner has miserably failed to prove the claim put forward. Counsel has then relied on the judgment of the Supreme Court reported in 1993 II CLR 116 (D.K.Yadav v/s. J.M.A. Industries Ltd.) In this case it was held that the termination by any name would be included within the definition of retrenchment as given in Section 2 (oo) of the Industrial Disputes Act. This case also followed the earlier case of Robert D'souza (1982 (1) SCC 645) wherein it was held by the Supreme Court that striking off the name from the rolls for unauthorised 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 the principles of natural justice would not be justified. Here again the evidence having been led in the Labour Court by both the parties the same evidence having been appreciated by the Labour Court as also by the Tribunal it would not be open to the Petitioner to argue that rules of natural justice have not been complied with. The other authorities cited by the Counsel are on the same point and reiterate the law which has been relied upon by the Counsel.
9. Counsel for the respondent has submitted that the Standing Orders had given a choice to the employer to choose as to whether to treat absence as a misconduct and proceed to pass an order of punishment or to treat the absence as abandonment and pass no order of punishment. For this proposition the Counsel has relied on 1969 2 LLJ page 799 (Tata Engg. and Locomotive Com. Ltd. v/s. Prasad.) In this case it has been clearly held as under:
"The Company had two courses either to act under the Standing Order empowering it to discharge the employee or to take disciplinary action against him and hold an enquiry. If the company had chosen to resort to standing order 47 for discharging the employee it would not be reasonably said that the company should have charged the workman with misconduct and held an esquire. The fact that it did not hold an enquiry but resorted to exercise its powers of discharge under standing order 47 could not render its order of discharge mala fide or one passed in colourable exercise of its powers to discharge the workman from service, if such power was properly exercised. Even if there is an investigation by the employer preceding the passing of the order of discharge, it would be merely a discharge simpliciter and it would not be a punitive one issued for misconduct. Thus it was held that the Company had properly and jutifiably exercised its power to discharge its employee under standing order 47."
Counsel has further submitted that Robert D'Souza's case was not decided on the basis of the interpretation of the Standing Orders. There was in fact no such rule. The services of the workman had been terminated therein on the ground of absence. There was also evidence to the effect that the action has been taken mala fide. Counsel further submits that even if it is held to be misconduct then the evidence has been led in both the Courts. Both the Courts have given concurrent findings of fact. These findings are not perverse. They are based on evidence. The story put forward by the petitioner has been totally disbelieved. Even otherwise it is submitted by the Counsel that present being a case of abandonment there was no question of it being treated as misconduct and, therefore, it was not necessary to follow the principles of natural justice. Counsel has relied upon 1992 1 LLJ 164 (Hindustan Fertilizer Corporation Ltd. v/s. S.C.Mukherjee) This is a judgment given by a Division bench of the Calcutta High Court. In that case it is held that where the management does not treat the absence as an act of misconduct but relies on the provisions of the Standing Orders then the termination of the service would be automatic. As soon as the incumbent remains absent from duty for requisite number of days, he is deemed to have abandoned his service. The management is not required by any overt act or otherwise to terminate the services of an employee. Thereafter the Counsel has relied upon a judgment of this Court reported as 1995 Lab. I.C. 498 (A.S.Hakke v/s. Maharashtra S.S.I. Development Corporation Ltd.) Here also the workman had remained absent without leave. The Labour Court has come to the conclusion that the workman had voluntarily abandoned the service. Therefore, in view of the conduct of the workman no relief was granted to the workman therein. This Court held that the Labour Court has correctly exercised the jurisdiction and no relief was granted to the workman. It was also held that even assuming that termination of service was for misconduct that the conduct of the petitioner, therein, was such that he disentitled himself from any relief. Relying on these authorities Counsel has submitted that the action has been taken against the workman under the standing orders which are binding on the parties. They are statutory in nature. The employer has option either to proceed to punish the workman after complying with the rules of natural justice or to simply pass an order under Standing Order 12 (9) wherein the workman is deemed to have abandoned the services. In the present case the termination of the service of the petitioner was automatic. Nothing further was required to be done by the respondent. I am inclined to agree with the Counsel for the Respondent that the Respondent No.1 was entitled to take action under Standing Order 12 (9). Thus once it has been held by both the Labour Court as also the Industrial Court there would be little scope to interfere in the finding that the workman had voluntarily abandoned the services.
10. Counsel for the petitioner has submitted that the aforesaid arguments are not available to the Respondents in view of the pronouncement of the law by the Supreme Court in D.K.Yadav's case (supra). I find considerable merit in the submission made by the Counsel for the Petitioner. In that case the appellant's services were terminated by taking recourse to Standing Order 13 (2) (iv) applicable to the parties. This was done on the allegation that he wilfully absented from duty continuously for more than 8 days without intimation or prior permission and, therefore, was deemed to have left the service. It was stated that as per clause 13 (2)(iv) of the Standing Order, on completion of 8 calender days absence from duty the employee shall be deemed to have been abandoned the services and lost his lien on appointment. The Tribunal upheld the termination of the appellant's services as legal and valid. After examining the whole issue the Supreme Court held that the definition of retrenchment in Section 2 (oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of any employee for any reason whatsoever. The contention on behalf of the employer that expiry of 8 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 was rejected. That being so, the petitioner would be entitled to reinstatement.
11. Counsel for the Respondents has submitted that in the facts and circumstances of this case it would not be appropriate to grant the relief of reinstatement to the petitioner. Here again it is to be noticed that the Supreme Court in the case reported as AIR 1994 S.C. 131 did not grant the relief of reinstatement in the facts and circumstances of that case. In that case a lumpsum compensation of Rs. 50,000/- was only granted. Thus I am inclined to accept the submission of the Counsel for the Respondents that before ordering reinstatement the Court has to take into consideration the facts and circumstances of each case. It is to be noticed that both the Labour Court and the Industrial Court has appreciated the evidence given by the petitioner as well as the Respondents. Thus the principles laid down in D.K.Yadav's case had been complied with. The petitioner was given full opportunity to establish his case in the Labour Court. The evidence given by the petitioner has been totally disbelieved. It has been held that the story put forward by the petitioner is not supported by any evidence. It has also been held that the services of the petitioner had not been terminated by way of punishment. It is only on the plea that the provisions of Section 25F have not been complied with that the petitioner may be entitled to some relief, if any. However, if any relief was to be granted this Court is of the opinion that the relief granted by the Labour Court could possibly have been granted.
12. It would, however, not be possible to grant any relief to the petitioner. The Industrial Court has after giving very cogent reasons held that the approach notice given by the petitioner is beyond the statutory period of 3 months. That being so, the application filed by the petitioner itself is not maintainable. Reference in this connection may be made to 1969 II LLJ page 24 (V.V.Vaishnav v/s. Kohinoor Mills Co.) In this case a Division Bench of this Court had an occasion to examine the provisions of Section 42(4) proviso 78, 79, 123 (2) of the BIR Act read with Rule 53 framed by the Government under the said Act. After examining the matter in detail the Division Bench had come to the conclusion that an application filed beyond the period of 3 months would not be maintainable. This position of law has been reiterated in the case of National Textile Corporation (SM) Ltd. v/s. P.Gama (Mrs.) and Ors. (1995 I CLR 84). In this case the workman in similar circumstances was not permitted to join the duties. On an application being made the Labour Court held that the application filed by the workman therein was barred by time. The employee appealed to the Industrial Court. The Industrial Court held that the application was within time. In the alternative it is held, if it was beyond time, it was a fit case for condonation of delay. The Industrial Court, therefore, held that she was entitled to be reinstated. Before this Court it was submitted by the Petitioner Company that Respondent No.1 having apparently abandoned the work is not entitled to file an application to the Labour Court under Section 78 of the Act. It was submitted that if refusal to give work is held to be an order then it amounts to an order of termination of service. The order of termination will not cease to be an order of termination even if it is strictly in compliance with the requirements of the Standing Order. Thus even in those circumstances the limitation for making an application for change in respect of an order passed by the employer under the Standing Order shall be applicable which is 3 months from the date of the order. It was argued on behalf of the employee that the limitation under Section 42(4) read with Rule 53 is not applicable as there is no order of termination under the Standing Orders passed by the employer. It was, therefore, submitted that in such a case the employee is free to file an application under Section 78 at any time he likes. No limitation will apply to such an application. One of the provisions of Section 78 gives jurisdiction to the Labour Court to decide disputes regarding the propriety or legality of an order passed by an employer acting or purporting to act under the Standing Orders. The explanation to Section (2) provides that a dispute falling under clause (a) of paragraph A of Sub-Section (1) shall be deemed to have arisen if within the period prescribed under the proviso to sub-section (4) of Section 42 no agreement is arrived at in respect of an order, in the matter of change referred to in the said proviso. Proviso to Section 42, Sub-Section (4) provides that the application challenging the order shall be made to the employer within the prescribed period. Rule 53 of the Bombay Industrial Rules, 1947 provides that such an application shall be made within a period of 3 months from the date of such order. After examining the aforesaid provisions this Court has come to the conclusion that even where there is an order of termination the Labour Court will have the powers under Section 78 to decide the dispute. Then Section 52(2) and Rule 53 will come into play and the limitation of 3 months for making an application shall apply. In paragraph 7 of the said judgment it is clearly held that an order of termination of service cannot be equated with an order of dismissal or discharge. Once the order of termination comes into existence it would continue to be an order of termination notwithstanding it being in violation of the requirements of the standing order. In such cases it would not cease to be an order under the Standing Order merely because it has been passed in violation of the requirements thereof though that might be a ground to raise a dispute regarding the propriety or illegality of such an order passed by an employer purporting to act under the Standing Orders. It is, therefore, clear that the limitation of 3 months prescribed by Rule 53 is applicable in such cases. The intention of the legislature in prescribing the time limit for making an approach letter by an employee aggrieved by any order of the employer passed under Standing Orders is to see that all disputes in regard to the standing order are raised at the earliest possibly and stale issues are not reopened after long lapse of time. It is also evident from the fact that the limitation under Rule 53 which was originally 6 months was reduced to 3 months in the year 1965. The whole exercise appears to be intended to ensure that the disputes are raised within a reasonable time not exceeding the time specified in the said Rule. In view of the above observations of this Court it has to be held that the approach notice sent by the petitioner is beyond the period prescribed under rule 53. That being so, the application before the Labour Court itself was not maintainable.