Devidas Khanderao Deshmukh vs Maharashtra State Co-Operative ...
2004 Latest Caselaw 27 Bom

JUDGMENT

S.T. Kharche, J.

1. Rule taken up for final hearing by consent of parties.

2. By this writ petition invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the Award dated 22-8-1990 passed by the Labour Court rejecting the Reference submitted to it by the Government of Maharashtra through Deputy Commissioner of Labour and consequently upholding the validity of termination order dated 24-4-1986 in relation to the petitioner issued by the respondent/Maharashtra State Cooperative Cotton Growers' Marketing Federation.

3. Relevant facts are as under :

The petitioner was working as a watchman with the respondent from the season of 1979-80. He worked continuously till the end of each season from 1979-80 to 1985-86. The petitioner was assigned the work at Dhamangaon Railway during the season 1985-86. During this period, the petitioner's wife had fallen ill and, therefore, he forwarded an application requesting the respondent to grant leave for the period from 14-1-1986 to 30-4-1986. The respondent asked the petitioner to join duties from 17-4-1986 but he was unable to report for duty and consequently the respondent terminated petitioner's service from 24-4-1986 in terms of Clause 22(f) of Schedule I of the Model Standing Orders appended to the Bombay Industrial Employment (Standing Orders) Rules, 1959 (for short the Model Standing Orders).

4. Thereafter the petitioner sent a letter to the Commissioner of Labour on 23-6-1987 being aggrieved by the termination order, who in turn made a reference to the Labour Court for adjudication as to whether the termination of petitioner's services was illegal. The parties adduced evidence during the course of trial. The Labour Court on considering the evidence and on hearing the learned counsel for the parties came to the conclusion that the termination of the petitioner from services was perfectly legal and valid and consequently answered the Reference in negative. This order is under challenge in this petition.

5. Mr. Moharir, learned counsel for the petitioner, contended that the petitioner had lost the lien under the provisions of Rule 13(4) of the Model Standing Orders and in fact the services of the petitioner were terminated by issuing the order dated 24-4-1986 wherein it has been mentioned that the provisions of Rule 22(f) of the Model Standing Orders have been contravened. He contended that if a workman remains habitually absent without leave for more than ten consecutive days or overstays the sanctioned leave without sufficient grounds or proper or satisfactory explanation then this would amount to misconduct in view of the provisions of Rule 22(f) of the Model Standing Orders and, therefore, the procedure prescribed as per Sub-rules (3) and (4) of Rule 13 of the Model Standing Orders has to be followed in case the employee is to be dismissed. He contended that the order of dismissal without holding enquiry on the ground of misconduct is bad in law and, in such circumstances, the impugned order passed by the Labour Court is not sustainable in law in view of the decision of the Apex Court in Lakshmi Precision Screws Ltd. v. Ram Bhagat, 2002 (III) CLR 299.

6. Mrs. Bodade, learned counsel, for the respondent contended that the petitioner was a seasonal employee and had remained absent continuously since 17-1-1986 beyond the period of leave originally granted to him without any explanation to the satisfaction of the respondent and, therefore, he was not in need of service. She contended that the petitioner had lost lien on the post in view of Rule 13(4) of the Model Standing Orders and he has been rightly terminated. She contended that the impugned order passed by the Labour Court does not call for any interference.

7. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the petitioner was employed as a seasonal worker by the respondent and he had applied for grant of leave. It is also not disputed that the leave was sanctioned to him for the period 14-1-1986 to 16-4-1986. Thereafter the petitioner sent a telegram dated 18-4-1986 and prayed for extension of leave till 30-4-1986. It is also not disputed that the extension of leave was not granted and the services of the petitioner came to be terminated from 24-4-1986 as he remained absent since 17-1-1986 without sanction of his leave. It is necessary to reproduce Rule 13(4) of the Model Standing Orders which reads as under :

"13. (1)..........

(2)..........

(3)..........

(4) A workman remaining absent beyond the period of leave originally granted or subsequently extended, shall be liable to lose his lien on his appointment unless he returns within eight days of the expiry of the sanctioned leave and explains to the satisfaction of the authority granting leave his inability to resume his duty immediately on the expiry of his leave. A workman who loses his lien under the provisions of this Standing Order but reports for duty within fifteen days of the expiry of his leave (i) shall be kept as 'badli' if he so desires and his name shall thereupon be entered in the 'badli' register, and (ii) if no 'badlis' are employed, his name shall be kept on a waiting list of persons to be given preference for employment as and when suitable vacancies occur.

8. Bare reading of the aforesaid provision would reveal that if a workman remains absent beyond the period of leave originally granted or subsequently extended, he will lose his lien on his appointment unless he returns within eight days of the expiry of the sanctioned leave, he has to explain to the satisfaction of the authority granting leave his inability to resume his duty immediately on the expiry of leave and the workman who loses his lien under the provisions of the Standing Orders but reports for duty within fifteen days of the expiry of his leave, he has to be kept as 'badli' worker if he so desires and his name has to be entered in the 'badli' register and if no 'badlis' are employed, his name shall be kept on a waiting list of persons to be given preference for employment as and when suitable vacancies occur.

9. In the present case, the petitioner cannot be said to have lost lien on his appointment as per the provisions of Sub-rule (4) of Rule 13. It is pertinent to note that the respondent had specifically terminated the services of the-petitioner by the order dated 24-4-1986 wherein the relevant portion is to the effect that he was continuously absent since 144-1986 and therefore, he has contravened the provisions of Rule 22(f) of the Model Standing Orders. These contents would clearly reveal that the services of the petitioner were terminated by invoking the provisions of Rule 22(f) of the Model Standing Orders.

10. In case the employer wants to terminate the services of an employee by invoking the provisions of Rule 22(f) then the prescribed procedure before issuance of termination order has to be followed. It is necessary to reproduce Rule 22(f) which reads as under :

"22. Any of the following acts or omissions on the part of a workman shall amount to misconduct:--

(a)........

(b)........

(c)........

(d)........

(e)........

(f) habitual absence without leave or absence without leave for more than ten consecutive days or overstaying the sanctioned leave without sufficient grounds or proper or satisfactory explanation;

11. The procedure as prescribed under Rule 23(3) and (4) reads as under:

"23. (1).......

(2)......

(3) No order of dismissal under Sub-clause (d) of clause (1) shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause (4).

(4) A workman against whom an inquiry is proposed to be held shall be given a charge-sheet, clearly setting forth the circumstances appearing against him and requiring his explanation. He shall be permitted to appear himself for defending him or shall be permitted to be defended by a workman working in the same department as himself or by any office bearer of a trade union of which he is a member. Except for reasons to be recorded in writing by the officer holding the inquiry, the workman shall be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rest. A concise summary of the evidence on either side and the workman's plea shall be recorded.

All proceedings of the inquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman concerned and the person defending him.

The inquiry shall be completed within a period of three months. Provided that the period of three months may for reasons to be recorded in writing be extended to such further period as may be deemed necessary by the inquiry officer.

12. The aforesaid provisions of law would clearly indicate that prescribed procedure has been laid down under Sub-clause (iv). Admittedly, in the present case, no departmental enquiry was held against the petitioner nor any charge-sheet was served on him clearly setting out the charge and requiring his explanation. Admittedly, no opportunity of hearing was accorded to the petitioner before issuance of the termination order and under these circumstances it is difficult to accept the submission of the learned counsel for the respondent that there was violation of Rule 13(4) of the Model Standing Orders.

13. The contention of the learned counsel for the petitioner is that the prescribed procedure has not been followed by the respondent while treating the absence of the petitioner as misconduct and terminated his services with effect from 24-4-1986 without affording an opportunity of hearing and, therefore, the impugned order of termination is outrightly illegal, appears to be well founded. In Lakshmi Precision Screws Ltd. v. Ram Bhagat, 2002 III CLR 299, cited supra, the Apex Court held "having regard to the well settled principle of law, 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 read as an inbuilt 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 issue as noticed above."

14. In the present case, the learned Presiding Officer of the Labour Court drew presumption that the petitioner was not in need of service. The respondent also on the presumption that the petitioner was not in need of service terminated his services with effect from 24-4-1986 merely on the ground that he continuously remained absent without sanction of the extended leave and without affording any opportunity to him to explain as to why he was absent, the action of the respondent in terminating the services of the petitioner with effect from 24-4-1986 is against the basic principles of the concept of justice. Arbitrariness is writ large as the petitioner was not afforded an opportunity of hearing in the matter by holding departmental enquiry against him as is required under the provisions of Rule 23(3)(4). The ratio laid down by the Apex Court, therefore, is squarely applicable to the facts and circumstances of the present case and this Court is of the considered opinion that the impugned order passed by the Labour Court cannot be sustained in law and the same is set aside. Consequently, the petitioner is held to be entitled to be in the employment from 24-4-1986 and be reinstated, but in the circumstances with 40% backwages. Rule is made absolute in the aforesaid terms.