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1970 Supreme(Del) 31
High Court Of Delhi
DELHI CLOTH AND GENERAL MILLS COMPANY LIMITED - Appellant
Versus
SHAMBHU NATH MUKHERJEE - Respondent
L.P.A. 66 of 1969
Decided On : 02/20/1970
A.K.JAIN, R.DAYAL
The automatic termination of service under the provisions of the Standing Orders cannot be termed as discharge, dismissal, or termination of the services of a workman by an employer.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2A - STANDING ORDERS - AUTOMATIC TERMINATION OF SERVICE - CONSTRUCTION OF RULE 27(C) - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 10 - REFERENCE OF DISPUTE TO LABOUR COURT - VALIDITY - ARTICLE 14 OF THE CONSTITUTION - DISCRIMINATION.
Fact of the Case:
The appellant, a public limited company, introduced a scheme for the re-organization of its weaving section, whereby the respondent, a workman, was placed under training for six months on probation. However, his work was not found satisfactory, and his probation was extended by three months. Even after the extended period, his work and conduct were not up to the mark, and he was offered the post of Fitter on the same terms and conditions as were applicable to him in the post of Motion Setter. The respondent did not agree to work as a Fitter and asked for further extension of the training period. The management informed him that if he did not agree to work as a Fitter, he would have to be retrenched as the post held by him had been abolished. The respondent did not report for work and was informed that his name had been automatically struck off the rolls under the provisions of the Standing Orders with effect from 24/08/1965 on account of his continued absence from duty without any intimation. Eventually, the dispute was referred to the Labour Court for adjudication.
Finding of the Court:
The Labour Court held that the respondent's service was automatically terminated on 24/08/1965. However, the learned Single Judge held that the respondent's absence from 16th to 23rd August did not satisfy the requirement of rule 27(c) of the Standing Orders, and therefore, there was no automatic termination of his services. The court further held that the reference of the dispute to the Labour Court was valid as the dispute arose out of an order of wrongful discharge or dismissal or termination of the respondent's services by the appellant.
Issues: 1. Whether the respondent's service was automatically terminated under rule 27(c) of the Standing Orders? 2. Whether the reference of the dispute to the Labour Court was valid?
Ratio Decidendi: 1. The court held that the expression "eight consecutive days" in rule 27(c) of the Standing Orders means more than eight calendar days and that the period of absence would include days on which the mill is closed or the day happens to be a day of rest for the workman. However, in the present case, the respondent was absent for only eight days, and therefore, there was no automatic termination of his services. 2. The court held that the reference of the dispute to the Labour Court was valid as the dispute arose out of an order of wrongful discharge or dismissal or termination of the respondent's services by the appellant.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is an appeal under clause 10 ofthe Letters Patent from the judgment of S. Rangarajan J. dated 30/05/1969 dismissing the appellant s petition under Article226 of the Constitution directed against an award made by thelabour Court.
( 2 ) THE material facts are not in dispute. The appellant is apublic limited company. It owns an industrial unit called theswatantra Bharat Mills at Delhi. Shambhu Math Mukherjiwho will hereafter be REFERRED TO to as respondent, was a work-manemployed in the said mills. He joined as a Store Coolie in 1951,became Fitter Helper after six months and was promoted afterabout a year as a Motion Setter. In October 1964, the appellant-company introduced a scheme for re-organisation of the Weavingsection of the mills whereby in pursuance of an alleged agreementbetween the work-men and the management, provision wasmade for the appointment of a new category of work-men calledassistant Line Fixers (Assistants Grade 1) and for the abolitionof the post of Motion Setters. Under that scheme, the respondentalong with some other work-men was placed under training forsix months on probation with effect from 1/10/1964. Hiswork was however not found satisfactory and the period of probation was therefore extended by another three months with effectfrom 1/04/1965. Even after the extended period, his workand conduct were not found upto the mark and as such he couldnot be appointed as Assistant Line Fixer.
( 3 ) THE post of Motion Setter having thus been abolished andthe respondent not having been found eligible for appointmentas Line Fixer, the management offered to him the post of Fitteron the same terms and conditions and emoluments as wereapplicable to him in the post of Motion Setter. It is howevernot disputed that the post of Fitter was otherwise lower thanthat of a Motion Setter. By letter dated 31-7-1965 the respondentwas informed that if he did not agree to work as a Fitter onthe terms and conditions offered to him he would have to beretrenched as the post held by him had been abolished.
( 4 ) ON 16/08/1965, the respondent submitted a reply inwriting indicating that he did not agree to work as a Fitter andasked for further extension of period of training by six months. The case of the respondent was that he kept on reporting for dulybut was prevented by the Shift Incharge from working. Theappellant on the other hand contended that the respondentdid not report for work at all and remained absent from 16thaugust onwards till he wrote again to the management on 4/01/1966 requesting that his letter of 16/08/1965 might be ignored. In reply the management by their letterdated 19/01/1966 informed the respondent that his namehad been automatically struck off the rolls under the provisionsof the Standing Orders with effect from 24/08/1965 onaccount of his continued absence from duty without any intimation.
( 5 ) EVENTUALLY by a notification dated 21/11/1966the Leiutenant Governor Union Territory of Delhi REFERRED TO tothe Labour Court for adjudication the industrial dispute relatingto the termination of the respondent s service.
( 6 ) THE Labour Court by its award dated 21/12/1967ordered the respondent to be reinstated with continuity of pastservice and full back wages coupled with a direction that if themanagement wanted to revert or retrench him they should do soin accordance with the rules and regulations applicable to hiscase after taking proper proceedings according to rules.
( 7 ) THE main controversy before the Labour Court and alsobefore the learned Single Judge centred round the meaning andscope of the relevant provision in the Standing Orders of thecompany on which reliance was placed by the appellant in supportof its case. The said provision is contained in rule 27 (c) of theappellant company s Standing Orders which were in force at thematerial time. The rule reads :-
"if any workman absents for more than eight consecutive days his services shall be terminated and shallbe treated as hav
