IMPORTANT POINT
There cannot be automatic termination of service of a workman on the basis of standing order of Management, on ground of unauthorised overstaying leave; principles of natural justice has to be complied with.

JUDGMENT

S.N. Variava, J.-This Appeal is against an Order dated 13th May, 1998 by which the writ petition filed by the Appellant has been dismissed.

2. Briefly stated the facts are as follows :

The 1st Respondent was appointed as unskilled workman w.e.f. 9th September, 1974 and was then promoted to the post of a semi-skilled worker w.e.f. 7th June, 1975.

3. On 1st August, 1976 the Respondent s name was removed from the roll of the Company under Standing Order 9.3.12. The said Standing Order reads as follows :

"9.3.12 Any workman who remains absent from duty without leave in excess of the period of leave originally sanctioned or subsequently extended for more than 10 consecutive days, he shall be deemed to have left the services of the Company of his own accord, without notice, thereby terminating his contract of service with the Company and his name will, accordingly, be struck off the rolls."

The Respondent raised an industrial dispute, which was referred for adjudication to the Labour Court, Lucknow.

4. By an Award dated 20th July, 1984, the Labour Court held that there was retrenchment. The Labour Court held that as the provisions of law, regarding retrenchment, had not been followed the termination was illegal. The Labour Court directed reinstatement with continuity of service and full back wages.

5. The Appellant filed the Writ Petition challenging the Award. The Writ Petition came to be dismissed by the impugned order dated 13th May, 1998.

6. Mr. Swarup submitted that there was no retrenchment. He submitted that the Respondent had been suspended from 28th June, 1976 to 7th July, 1976 and was to join duty after 7th July, 1976. He submitted that the Respondent did not join duty. He submitted that the Respondent was personally advised by the Chief Personnel Officer of the Company to join his duty on 23rd July, 1976, failing which his name would be removed from the roll. Mr. Swarup submitted that the Chief Personnel Officer of the Company wrote a letter dated 24th July, 1976, calling upon the Respondent to join duties latest by 30th July, 1976, failing which his name would be removed from the rolls of the company. He submitted that the Respondent still failed to join duty. He submitted that under these circumstances the Appellant is entitled to remove the name of the Respondent from the roll of the company under the above mentioned Standing Order. He submitted that such removal does not amount to retrenchment.

7. He relied upon the judgment in the case of Scooters India and Ors. v. Vijai E.V. Eldred1, wherein in respect of Standing Order 9.3.12, it has been observed as follows :

"It is also extraordinary for the High Court to have held clause 9.3.12 of the standing orders as invalid. Learned counsel for the respondent rightly made no attempt to support this part of the High Court s order."

8. On the other hand Mr. Chinnasamy has relied upon the case of Uptron India Ltd. v. Shammi Bhan and Anr.2. In this case it was held that such a standing order conferred a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It was that the discretion had to be based on an objective consideration of all circumstances and material which may be available on record. It was held that questions which would naturally arise are what circumstances compelled the employee to proceed on leave, why he overstayed leave, was there any just and reasonable cause for overstaying leave, whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime fallen ill. It was held that such questions could only be answered by the management provided it was inherent in the provision that the employee against whom action was proposed to be taken on the basis of such a provision was given an opportunity of hearing. It was held that principles of natural justice had to be read into such a clause and the principles of natural justice had to be complied