Roshan Lal vs The Management Of Swatantra ...
1981 Latest Caselaw 443 Del

JUDGMENT

B.N. Kirpal, J.

(1) In this writ petition the challenge is to the award of the Labour Court, Delhi dated 14th January, 1970 whereby the dispute referred to it by the Lt.-Governor has been decided in favor of the Management.

(2) The petitioner was admittedly a workman of the respondent. On 6th September, 1968 he was arrested by the police. According to the petitioner the arrest was made with an ulterior motive. For our purposes it is not relevant as to what was the reason of his arrest. The petitioner remained absent from duty with effect from 6th September, 1968. According to the petitioner he sent application for leave from jail, receipt of which is denied by the management. It was also stated by the petitioner that on 12th September, 1968 his brother submitted an application to the management to the effect that the petitioner had been arrested and that he should be granted leave.

(3) The petitioner was released from jail on 25th September, 1968. Thereafter on 27th September, 1968 he reported for duty. The petitioner was informed that his name had been struck off from the rolls on 14th September, 1968 under Standing Order 27-D. The said Standing Order reads as follows :- "IF any workman absents for more than eight consecutive days, his services shall be terminated and shall be treated having left the service without notice".

(4) An industrial dispute having arisen, the Lt. Governor, by his order dated 20th March, 1969, made the following reference to the Labour Court for adjudication:- "WHETHER Sarvshri Roshan Lal and Ram Singh are entitled to reinstatement with continuity of service and if so what directions are necessary in this respect ?"

(5) The case of the management before the Labour Court was that the services of the petitioner were terminated as he remained absent for more than 8 consecutive days. The Labour Court referred to a number of decisions including the decision of the Supreme Court in the case of Indian Iron and Steel Co. Ltd. and another v. their workman, 1958(1) Lij 260 and came to the conclusion that when an employees is arrested it is not obligatory for the management to grant leave and that the management would be entitled to terminate the services of such an employee. The Labour Court also took note of another decision of the Supreme Court in the case of National Engg. Industries Ltd. Jaipur v. Hanuman, 1967 (II) Llj 883. The Labour Court held that as the petitioner had remained absent for more than 8 consecutive days he should not be granted the relief of reinstatement. He also held that the allegations of victimisation and mala fides have not been proved.

(6) Before me, in the present writ petition filed under Article 286 of the Constitution, strong reliance has been placed by Shri Saxenn on the decision of the Supreme Court in the case of Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath, 1977 Lab. I.C. 1695. To my mind the ratio of that case applies to the present case. The Supreme Court there was concerned with the same standing order 27(c). In that case the workman had remained absent from 16th August, 1965. His services were terminated on 24th August, 1965. The Court observed that on the day when the services were terminated the workman had not been absent for more than 8 consecutive days. It will be seen that in the aforesaid case the services were terminated on the 9th day. Similar is the position here. The petitioner remained absent from 6th September, 1968. His services were terminated on 14th September, 1968, namely, on the 9th day. Applying the ratio of the judgment of the Supreme Court in the aforesaid case it cannot be said that the petitioner had been absent for more than 8 consecutive days' on 14th September, 1968. In other works it is only if a workman is absent for 9 days that his services can be terminated under Standing Order 27(c) This not having been done in the present case and the order of his termination is obviously bad.

(7) Mr. Mathur, however, strongly relied upon the case of Hanuman (supra) and contended that this is a case of automatic cessation of service. The ratio of that decision cannot apply to this case. In that case the Standing Order did not envisage any order of termination being passed. The Standing Order provided for automatic termination of the lieu if an employee was absent for more than 8 days. It was in that context that the Supreme Court said that there was an automatic termination of services. Standing Order 27(c), however, postulates an order of termination being passed. The only effect is that the workman would be deemed to have left service without giving notice. If the workman could leave the service by giving one month's notice then his absence from duty can only mean that such notice has not been given and on his services being terminated the management may be entitled to recover one month's salary from him. In any case there can be no dispute that Standing Order 27(c) does contemplate an order of termination being passed which was done in this case but, as already observed, the said order of termination which was passed on the 9th day could not have been passed till after the 9th day.

(8) Mr. Mathur states that even if the order of termination was bad the petitioner would not automatically be entitled to reinstatement and continuity of service etc. It is true that the Labour Court has not applied its mind as to what relief, if any, can be granted to the petitioner in case it is held that the order of termination is bad. Therefore, it will not be proper for this Court to decide the dispute one way or the other.

(9) For the aforesaid reasons the writ petition is allowed and the order dated 14th January, 1970 of the Labour Court is quashed. I also hold that the order of termination dated 14th September, 1968 was bad in law. The case is, however, remanded back to the Labour Court for deciding the dispute in accordance with law and in the light of the observations made in this judgment. The Labour Court should endeavor to dispose of the case within six months of the receipt of the certified copy of the judgment from this Dourt. The petitioner shall be entitled to costs.