AHMEDABAD ADVANCE MILLS CO LTD Vs. SUNDARBHAI BUDHABHAI

JUDGEMENT

(1.) This is an employer's appeal made under S. 84 of the Bombay Industrial Relations Act, 1946, (Bombay Act No. XI of 1947), against the decision, dated 19th October, 1977, made by Shri R. S. Shukla, learned Judge of the Second Labour Court at Ahmedabad, in Original Application No. 696 of 1976 of his Court. The application was made by the employee named, Shri Sundarbhai Budhabhai, seeking a declaration that the act of the mill-company in deleting his name from the muster roll and thereby terminating his services was illegal, unjust, improper and asking for an order of reinstatement in original service with full back wages.

(2.) It appears that the applicant-employee was serving in the mill-company in S. No. 11 in the third shift of the weaving department since the year 1967 and was a permanent operative. He was working on looms No. 835 to 838. He had got his privilege leave from 8th October, 1975 to 12th October, 1975 and the mill-company had accordingly granted him leave pass (Exhibit 10) for the said period. He was to report for duty at the mill gate on 13th October, 1975. However, on 13th October, 1975, he was arrested by the police on the charge of murder and was detained in Sabarmati jail, for a trial on the murder charge. He was acquitted of the charge and was released from the jail. After his released from the jail, he reported for duty at the mill gate on 26th March, 1976, and saw the acting manager, Shri Joshi, at the suggestion of the concerned offer of the mill, but he was told that no earned leave could be sanctioned by the mill-company in respect of any workmen for going to the jail. He was told that his name was struck off the muster roll for his absence. These facts are not in dispute. It is common ground that the employee was on earned leave which was sanctioned and could not report for duty on the expiry of his leave, because he was confined to Sabarmati jail on a charge of murder and had to remain in jail till he was acquitted of the charge and released from the jail custody. It is also common ground that he was marked absent in the muster roll of the mill-company and his name was struck off the roll by the mill-company on 25th March, 1976. It is not disputed that he had reported for work after his release, although the date of reporting, according to the employee, was 26th March, 1976, and, according to the acting manager, Shri Madhusudan Joshi, (Exhibit 16), the employee had not seen him before April, 1976, and had seen him in April, 1976. It is not material whether the employee had reported for duty on 26th March, 1976, or in early April, 1976, because, even according to the company the employee's name was struck off the muster roll on 25th March, 1976. The mill-company had produced the muster roll for the relevant period which shows the name of the employee at serial No. 165 and it shows that he was marked absent till 24th of March, 1976, and his name was then cancelled. But as this muster roll was produced after the arguments on behalf of the employee were over in the lower Court and as Shri Jyotikar appearing for the employee had objected to its being exhibited, the muster roll has not been exhibited and I am not, therefore, taking the entries therein into consideration for the purpose of deciding this appeal. But, the fact remains that according to the mill management, the name of the employee was struck off the muster role on 25th March, 1976, and the mill-management did not hold any enquiry before striking off the name. The learned Labour Judge has taken the view that it was necessary for the employer to hold some sort of enquiry before acting against operative under Standing Order No. 11(4) of the Standing Order as finally settled for operatives in cotton textile mills (Ahmedabad), which have come into force on and from the 1st day of August, 1973, vide "A Hand Book of Standing Orders, complied by Vakil and Rana at p. 137). He has held that no enquiry was held. In his opinion, in the matter of overstayal of leave, the employer was not entitled to justify its action by leading evidence before the Court. Even otherwise, according to him, no purpose would have been served by giving any opportunity to the mill-company, as there was no show-cause notice issued or discharge order given in writing. He had thus not granted permission to the mill-company to lead evidence before the Court to justify that act of striking off the name if the employee from the muster roll and thus, terminating his services. In this view of the matter, the learned Labour Judge has in the penultimate para of his judgment (para 30) hold that the sanction of the mill company in striking off the name of the employee from the muster roll and thereby terminating his services orally, was illegal, improper and unjust. The learned Judge has directed the mill-company to reinstate the employee on his original post with full back wages from the date of striking off the name of the employee from the muster roll till the date of his reinstatement. It is against this decision that the present appeal is directed.

(3.) Shri D. C. Gandhi, learned advocate appearing on behalf of the appellant has contended before me that the action of the mill-company in striking off the name of the respondent-employee from the muster roll, was not an act of termination of service, nor was it an act of discharge or dismissal, and no written order was required and Standing Order 25, which required a written order to be passed, was, therefore, not attracted. He contended that the act of striking off the name of the employee from the muster roll, was because of the overstayal of leave by the employee, who had remained absent beyond the period of leave originally granted to him and because he did not report for work for a period of 3 months from the date of leave originally granted to him and, therefore, as provided by clause (4)(a) of the Standing Order 11, the employee was deemed to have left services voluntarily. In Shri Gandhi's submission, it was a simple act of the employee having left the services voluntarily by virtue of operation of clause (4)(a) of Standing Order 11, which reads;