KAILASH MOTORS Vs. PRESIDING OFFICER LABOUR COURT I

JUDGEMENT

(1.) The question which has been referred to Larger Bench by the learned Single Judge is extracted blow:

(2.) The facts in brief are that the petitioner is a small-scale unit engaged in sales and purchase of Tata Diesel Vehicles, Bajaj Scooters and other auto vehicles and was employing about 40 workmen. The establishment of the petitioner is a shop within the meaning of U.P. Shops and Commercial Establishments Act, 1962. The State of Uttar Pradesh has framed standing orders which are known as Standing Orders, 1972 which came into force under Section 3(b) of the U.P. Industrial Disputes Act, 1947 (in brief the U.P. Act) with effect from 14.8.1972. Sri Pratap Singh, the Respondent No. 3 (in brief the workman), was employed on 7.4.1971 in the petitioner's establishment. He applied for one day's casual leave on 13.11.1972, After expiry of leave he did not report for duty and remained absent for four weeks. On 5.12.1972 his name was struck-off from the register on the ground that he had abandoned his employment. He was informed about the order sent by registered as well as ordinary post on 6.12.1972. He reached the office on 6.12.1972 and signed the attendance register, which was cut-off by the Manager of the establishment. The workman raised an industrial dispute. The State Government on 25.7.1973 referred the dispute, under Section 10(1)(c) to the Labour Court, Kanpur which was registered as Adjudication Case No. 209/1973, as to whether the name of Sri Pratap Singh, Clerk had been validly struck-off on 5.12.1972 from the register depriving him from his work and as to what relief the workman was entitled?

(3.) The Labour Court by its award dated 31.1.1980 held that the workman overstayed his leave but it was not a case of abandonment of employment. It directed reinstatement of the workman within a week and granted 25% back wages from 14.11.1972 till the date of reinstatement. The award was challenged before this Court. Two questions arose, whether absence by the workman after expiry of the leave amounts to abandonment of employment and whether striking-off the name of workman from muster-roll, due to absence without leave, after expiry of the period in the standing orders amounted to retrenchment. Since there was difference of opinion on these aspects, the learned Single Judge hearing this petition referred the matte to the Larger Bench to resolve the conflict. A Single Judge in Kshetriya Shri Gandhi Ashram, Magahar v. Ram Samujh Maurya and Ors., 1990 (61) Indian Factories and Labour Reports 1, held that where a workman has himself abandoned his job his service would be deemed to have been terminated automatically. It further held that abandonment of service shall not constitute retrenchment. In the other decision namely Afsar Mian v. Labour Court, Bareilly and Ors., 1991 (63) Indian Factories and Labour Reports 721, it was held that every termination, for whatsoever reason it may be, is retrenchment excepting the categories of termination specified in Section 2(oo) of the Central Act. Similarly in Arun Kumar Mathur v. Labour Court and Anr., 1993 (66) Indian Factories and Labour Reports 211, Section 2(oo) of the Central Act was interpreted and it was held that voluntary abandonment of service would not fall within the exception of Section 2(oo) and removal of the name of a workman from the muster-roll amounted to retrenchment.