D T C Vs. SHISHUPAL

JUDGEMENT

(1.) No rejoinder is filed by the petitioner inspite of various opportunities given and last opportunity given on 2.12.1997. Rule. Respondent workman was employed as Tyreman from May, 1980 and brought on monthly rates of pay with effect from 6.5.1981. From 16.6.1987, he absented himself from duties and in these circumstances, invoking provisions of Clause 14(10) (e) of the D.RJ. Act he was declared as deemed to have resigned from the services. It is stated in the petition that respondent workman was served with two memos dated 24.7.1987 as well as 31.8.1987 asking him to report for duties but When he failed to report for duties provisions of clause 14 (10) (c) of DRJ Act (Conditions of appointment and Services) Regulation 1952 were invoked and it was treated that respondent workman deemed to have resigned from services. Respondent workman raised industrial dispute which was referred to Labour Court and impugned award dated 11.10.1996 is passed as per which the termination of services of the respondent workman amounted to retrenchment under Section 2(00) of the Industrial Dispute Act as petitioner management had not complied with the mandatory conditions by paying notice or compensation to him, the termination was treated to be violative of provisions of Section 25F of the Industrial Dispute Act. Accordingly, Labour Court granted reinstatement with full back-wages and continuity of service. It may be mentioned that on 12.10.1995, when the case was fixed for the evidence of the respondent workman, petitioner management did not appear and was proceeded ex-parte. Thus the award is passed on the basis of evidence on record produced by the respondent workman and no evidence of rebuttal was produced by the petitioner management. No steps were taken to get the ex-parte proceedings or ex-parte award was set aside by moving appropriate application. Instead present writ petition is filed challenging that award. In the present petition also, no reasons are stated as to why petitioner management absented itself on 12.10.1995 or did not participate in the proceedings. Instead award is challenged on merits on the ground that Labour Court should not have treated this case as a case of retrenchment as it was the case of deemed resignation in view of the provisions of clause 14(10) (e) readwith 14(10) (b) of the DRTA (Conditions of Appointment & Service). Since no contention was taken before the Labour Court nor any material produced to show that notices were sent to the respondent workman asking him to join duties, such a material cannot be produced by the petitioner management for the first time in this Court in these proceedings. The Labour Court has rightly, on the basis of material placed on record, come to the conclusion that it was the case of retrenchment.

(2.) Even otherwise, if the respondent workman was absent, this could be treated as misconduct and proper inquiry should have been held against the respondent workman who was a regular employee, instead of taking recourse to clause 14(10) (c) of the DRTA Rules and Regulations [Refer: D.K.Yadav Vs. J.M.A. Industries Limited reported in 1993 (67) FLR 111 and in the case of Uptron India Umited Vs. Shammi Bhan and Anr. reported in 1998 (79) FLR 233). In a recent case, Allahabad High Court struck down Rule 63(a) of U.P. State Handloom Corporation Limited (Officers and Staff) Service Rules, 1981 which provided for automatic termination of service due to absence. Thus the Labour Court was right in holding that termination of service of the respondent workman was bad in law particularly when the petitioner management remained ex-parte and did not lead any evidence. I may again clarify that the case is dealt with on the basis of material which was before the Labour Court and in the absence of any material produced by the petitioner. It is not necessary to comment as to what would have been the position of petitioner would have led evidence or proved memos allegedly sent to the respondent workman.

(3.) However keeping in view the fact that the services of the respondent were terminated in the year 1986 and since long time has elapsed, the relief in respect of back-wages is modified and instead of full back-wages, 50 percent back-wages are awarded to the respondent workman.