Automatic termination of service under the Standing Orders is also termination within the meaning of Section 2(oo) of the Industrial Disputes Act, and employees who are automatically terminated are entitled to the benefit of Section 25F of the Act.

Satya Brata Sanyal, J.

1. The main question in this writ petition is whether a person losing lien on his appointment under certified standing order is entitled to the benefit of Sec.25F of the Industrial Disputes Act (hereinafter to be referred to as the Act)? In short, whether automatic termination of service under the standing order is also termination within the meaning of Sec.2(oo) of the Act?

2. I shall narrate facts which are only germane for this purpose. The petitioner was employed as Burner in the Cement Factory of Rohtas Industries Limited at Dalmianagar. He was appointed in the year 1949. Because of his ill-health, he went on sick leave. It is said that he applied for extension of leave as he was not cured of his ailment. The management vide its letter dt. 1st August, 1970, intimated to the petitioner that he was granted leave till 14th July, 1970 and thereafter he was absenting himself without leave. As the petitioner remained absent beyond the period of leave originally granted and subsequently extended and had not returned to his duties within ten days of the expiry of the leave, he had lost lien on his appointment under Clause 38(d) of the Standing Orders of the company. On an industrial dispute being raised, the appropriate Government made a reference under Sec.10(1)(d) of the Act and the reference came to be registered as Reference No. 25 of 1972. One of the terms of the reference is Whether the termination of service of Shri Deshraj Sood; Burner, Rohtas Industries Limited, Cement Factory is proper and justified? If not, whether he is entitled to reinstatement and or any other relief.?

The Presiding Officer, Industrial Tribunal, inter alia, held that in cases of automatic termination of service under the standing order the concerned worker is not entitled to the benefit of Sec.25F of the Act. The Tribunal, however, gave a direction to the management to give a fresh appointment to the petitioner and the said appointment shall come into force from the date of the publication of the award. Payment of bac kwages was refused.

3. Mr. Tara Kishore Prasad, learned Counsel appearing for the petitioner, raised only one point. Assuming that the petitioner lost lien on his appointment by virtue of Clause 38(d) of the Standing Orders the termination of service of the petitioner on 1st August, 1970 (Annexure 2) is void ab initio for infraction of the provisions of Sec.25F read with Sec.2(oo) of the Act. The order being void ab initio the petitioner would be deemed to be continuing in service, there being no cessation of the relationship of employer and employee.

4. Mr. R.P. Katriar, learned Counsel appearing for the Management contended that Sec.25F of the Act is not at all attracted in a case where there is automatic termination of service. The termination has been brought about by operation of the standing order certified under the Industrial Employment (Standing Orders) Act. The name of the petitioner had to be removed from muster roll as a matter of course as the employer had nothing to do in terminating the relationship. As such provision of Sec.2(oo) of the Act has no manner of application. Learned Counsel further contended that the terms and conditions of service under the Standing Order which require to be certified under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter to be referred to as the Standing Orders Act) are statutory terms of contract of service. The definition under Sec.2 of the Act is for the purpose of this Act. Therefore, it cannot obliterate the provisions of the Standing Orders Act or add fresh terms and conditions of service. The learned Counsel further urged that in cases of loss of lien. Sec.25F of the Act is impossible of compliance. For complying with Sec.25F, the service of the person automatically losing lien, has to be extended by one month, which would be wholly contrary to the provisions of Standing Order.

5. It is true that, in cases of loss of lien, the service