ABDUL GANI Vs. GENERAL MANAGER VISHWESHWARAIAH IRON AND

JUDGEMENT

(1.) THESE are the two appeals arising out of the order of the learned Single Judge dated 18-10-1995 in Writ Petition No. 9194 of 1990. Abdul Gani had been employed in the Visweswaraiah iron and Steel Limited, Bhadravathi. Workman Abdul Gani is the appellant in Writ Appeal No. 7 of 1996, while the management is the appellant in Writ Appeal No. 4362 of 1995.

(2.) WORKMAN applied for leave for 20 days from 5-10-1971. He did not report for duty after expiry of leave. His claim that he had submitted an application on 4-11-1971 for extension of leave was disputed by the management. Taking recourse to Clause XII of the Certified Standing Orders relating to leave, management, by the memo dated 4-11-1971, intimated the workman about his having lost lien of his job leading to termination of his services. Workman raised an industrial dispute in this regard at ID No. 52 of 1981 before the Labour Court at Bangalore. Admittedly, the termination had not been preceded by any domestic enquiry. Labour Court recorded evidence on behalf of the workman and the management with regard to justification of the order of termination. By its award dated 5-8-1989, Labour Court found that the management was justified in terminating services of the workman on the ground that he had lost his lien on his job and as such, workman was not entitled for reinstatement, back wages and other consequential benefits. Under Article 226 of the constitution of India, workman at Writ Petition No. 9194 of 1990 sought quashing of this award. Learned Single Judge, relying upon the decision of the Supreme Court in D. K, Yadav v j. M. A. Industries Limited , held that the principles of natural justice must be read into Clause XII of the Certified Standing orders relating to leave, and, as such, termination of services of the workman without an enquiry could not be upheld and that the said termination by the management's memo dated 4-11-1971 should, therefore, be treated as non est. Learned single Judge however held that the workman was not entitled to be reinstated because, before the Labour Court, the management had justified the order of termination. Since the order of termination by the management had not been preceded by an enquiry, doctrine of relation back in relation to the termination would not come into play so as to hold that the termination, which stood justified before the Labour Court, related back to 4-11-1971 when the management initially terminated the services of the workman. Learned Single Judge held that since the termination had been justified for the first time before the Labour Court, the worker should be held entitled to back wages from the date of termination till the date of the award of the Labour Court. Even then, the learned Single Judge restricted granting of back wages during the said period from the date of termination, namely 4-11-1971, till the date of award, namely 5-8-1989 to only 50 per cent on the ground that there was no explanation on the part of the worker for the delay in making the reference till 1978. The worker is aggrieved that, his initial termination with effect from 4-11-1971 being bad, not only on the ground that no enquiry had been held but also on the ground that it amounted to retrenchment within the meaning of section 2 (oo) of the Industrial Disputes Act, 194z ("the Act" for short), which retrenchment had been made without compliance of Section 25-F of the Act, his reinstatement in service with consequential benefits should have been automatically done and the learned Single Judge erred in directing awarding of only 50 percent back wages. Management is aggrieved because, the learned Single Judge, while awarding back wages, did not consider the fact that the workman had been gainfully employed during the relevant period and that the learned Single Judge further erred in the matter of application of doctrine of relation hack. Management contended that once the termination was justified before the Labour Court it related back to the management's order of termination of services of the workman dated 4-11-1971,

(3.) CLAUSE XII of the Certified Standing Orders inter alia provided that, if the employee, after proceeding on leave, desires extension thereof, he shall apply to the Superintendent or other person authorised by him and that, if the employee remains absent beyond the period of leave originally granted to him or subsequently extended, he shall lose his lien on his appointment, unless he returns within eight days from the date of expiry of leave and explains to the satisfaction of the Superintendent or other person authorised by him, about his inability to return before the expiry of leave. Workman went on leave for 20 days from 5-10-1971. He was due to return for duty on 25-10-1971. According to workman, he did seek extension of leave on medical grounds by a leave letter he had sent by registered post on 5-11-1971. After expiry of initially granted leave period of 20 days and after waiting for a grace period of 8 days, during which period workman was entitled as per the said Clause XII of the Certified standing Orders, to return and satisfactorily explain the reasons for his inability to return before the expiry of leave, the management sent a memo with regard to services of the workman having been terminated on his losing lien on the appointment, in terms of the said Clause XII. Admittedly, neither show cause notice had been issued to the workman, nor his explanation sought for nor any enquiry held, before the workman's services were terminated on the ground of his having lost his right of Hen on the appointment under Clause XII of the Certified Standing Girders. The Supreme court was dealing with termination of services of a workman in terms of a similar Standing Order in D. K. Yadav's case, supra. His Lordship Justice K. Ramaswamy, speaking for the Bench, observed that the right to life enshrined under Article 21 of the constitution of India, would include right to livelihood, that the order of termination of services of a workman visits with civil consequences of jeopardizing not only his livelihood but also the career and livelihood of his dependents, and that therefore, before taking any action putting an end to the tenure of the workman, fairplay required that a reasonable opportunity to put forth his case be given and a domestic enquiry conducted, complying with the principles of natural justice. As in the present case, even in the case before the Supreme Court, admittedly no opportunity had been given to the workman nor any enquiry held. The Industrial Tribunal had also not recorded any conclusive finding on the workman's pleas, that despite his reporting to duty, he was prevented. The Tribunal had proceeded on the footing that the management had a power under Clause XIII of the Certified Standing Orders concerned, to terminate the services of the workman therein. The Supreme court, therefore, held that the principles of natural justice must be read into the said Standing Order No. XIII, as otherwise, it would be arbitrary, unjust and unfair, violating Article 14 of the constitution of India. When so read, the Supreme Court held that the impugned action was violative of the principles of natural justice. It was in the light of the principles enunciated in the said decision of the Supreme Court that the learned Single Judge, in the impugned order, rightly held that the principles of natural justice must be read into Clause XII of the Certified Standing orders relating to leave. So read, it was obvious that the workman's termination of services with effect from 4-11-1971 without show cause notice, without an opportunity to the workman to explain his stand, and without an enquiry, had to be treated as non est.