KAILASH PARSHAD SHARMA Vs. LABOUR COURT

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution is directed against the award of the Labour Court, Faridabad, dated May 26, 1988, whereby the order terminating the services of the petitioner was held to be justified and in order and as a result whereof the reference was decided against him.

(2.) THE case of the workman is that he was employed in the year 1979, by Amar Machine Tools (hereinafter called "the management") as a turner and that his services were terminated on August 28, 1985, when he was drawing wages at Rs. 404. 50 per month. He alleged that the management did not comply with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short "the Act"), while terminating his services. He served a demand notice under Section 2-A of the Act claiming reinstatement with full back-wages on the ground that his services had been wrongfully terminated. On receipt of this demand notice, the conciliation officer took cognizance of the industrial dispute between the parties and started conciliation proceedings. Before the conciliation officer the management took the stand that it had not terminated the services of the workman and that he started remaining absent from duty with effect from August 29, 1985. The management made an offer to take the workman back on duty. In view of this offer the conciliation officer directed the workman to report for work but in spite of that he did not turn up. Not only this, the management then sent a letter to him requiring him to resume duty but this letter was received back undelivered. Another letter was sent to him by registered post informing him that his name had been removed from the muster roll and that he should receive the amount due to him after settling his account with the office. This letter was also received back undelivered. Thereafter, on a reference made by the State Government under Section 10 (1) of the Act, the dispute was referred for adjudication to the Labour Court, Faridabad. After recording evidence of the parties and on consideration thereof the Labour Court found that the management had offered to take the workman on duty during the course of conciliation proceedings, but he did not join. It has also been held that the management had written letters to the workman to resume duty and when he did not do so, his name was removed from the muster roll. It is true that the management required the workman to collect the money that was due to him after settling the account in the office and this, according to the Labour Court, was sufficient compliance with the provisions of Section 25-F of the Act. The order of termination was, therefore, upheld and the reference was decided against the workman.

(3.) THE argument of learned counsel for the petitioner is that the provisions of Section 25-F of the Act had not been complied with and that it was necessary for the management to do so even when the name of the workman was being removed from the muster roll on account of his absence. In support of this contention, he placed reliance on the judgment of the Supreme Court in D. K. Yadav v. J. M. A. Industires Ltd. , (1993-II-LLJ-696 ). I find merit in this contention. Even though the workman remained absent which necessitated the removal of his name from the muster roll, yet, such termination amounted to retrenchment within the meaning of Section 2 (oo) of the Act. It was, therefore, necessary for the management to have strictly complied with the provisions of Section 25-F of the Act which, in the circumstances of the present case, cannot be said to have been complied with. No doubt, the employer wrote to the workman to clear his account in the office but this did not amount to an offer of retrenchment compensation at the time of terminating his services. The termination was, therefore, not in order though in the circumstances of this case it was just.