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1997 Supreme(All) 1565
IN THE HIGH COURT OF ALLAHABAD
S.L. SARAF, J.
Uptron India Ltd. – Appellant
Versus
Presiding Officer, Industrial Tribunal VI and Others – Respondents
Civil Misc. Writ Petition No. 7770 of 1992
Decided On : 01-10-1997
The termination of an employee's services without following the principles of natural justice is illegal and void, and such termination amounts to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947, unless it falls within any of the excepted categories.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(OO) - RETRENCHMENT - AUTOMATIC TERMINATION OF SERVICES - PRINCIPLES OF NATURAL JUSTICE - UNFAIR LABOUR PRACTICE - INTERPRETATION OF SECTION 2(OO)(BB) - VALIDITY OF TERMINATION - REINSTATEMENT WITH BACKWAGES.
Fact of the Case:
The petitioner, a company, challenged the award of the Industrial Tribunal reinstating the respondent, a lady operator, who was terminated from service for unauthorized absence from duty for more than seven days, as per the Certified Standing Orders. The respondent claimed that she had sent a letter informing the petitioner about her illness and had submitted a medical certificate.
Finding of the Court:
The court held that the termination of the respondent's services was illegal and void as it was done without following the principles of natural justice, without issuing any show-cause notice, holding an enquiry, or seeking an explanation. The court further held that the termination amounted to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947, and that the provisions of Section 25F must be satisfied.
Issues: 1. Whether the termination of the respondent's services was valid under the Certified Standing Orders? 2. Whether the termination amounted to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947? 3. Whether the provisions of Section 25F were satisfied?
Ratio Decidendi: 1. The court held that the principles of natural justice are an inbuilt part of the procedure of Clause 17(g) of the Certified Standing Orders, which allows the management to terminate the services of an employee. The termination of services without following the principles of natural justice is unjust, arbitrary, and unfair, violating Article 14 of the Constitution of India. 2. The court held that the termination of the respondent's services amounted to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947, as it was not covered by any of the excepted categories, including Sub-clause (bb). 3. The court held that the provisions of Section 25F were not satisfied as the petitioner failed to follow the procedure laid down under the Industrial Disputes Act, 1947, and terminated the respondent's services on its own accord.
Final Decision: The court dismissed the petition and affirmed the award of the Industrial Tribunal, reinstating the respondent with 50% of the backwages from the date of termination of service till her reinstatement.
S.L. SARAF, J.
1. The petitioner has filed this writ petition challenging the award given by the Industrial Tribunal, Lucknow on 21.7.1992.
2. The facts in nutshell are as follows:
The respondent No. 2 joined the services of the petitioner as a lady operator (trainee) w.e.f. 13.5.1980. On completion of the training period she was absorbed as operator w.e.f. 13.7.1981 as such she was duly confirmed on 13.7.1982. The respondent No. 2 worked satisfactorily with the petitioners. Some time one and from 7th November, 1984 she proceeded on maternity leave and remained on the said leave till 29.1.1985. Thereafter, she absented herself without any application for leave or grant of leave w.e.f. 30.1.1985 to 12.4.1985. Though the respondent No. 2 has averred that on 15th February, 1985 she had sent a letter for leave through her father informing the petitioner that she is ill, a copy of the said letter was exhibited before the Tribunal, Another document which was exhibited was a certificate issued by Dr. Radha Sharma which says that on and from 27th February to 16th April, 1985 she was in her treatment. On 12th April, 1985 the petitioner terminated the services of the respondent No. 2 taking resort to the provisions of Clause 17 (g) of the Certified Standing Order. The said Standing Order reads as follows:
"17. (g) The services of a workman ore liable to automatic termination if he overstays on leave without approval or absents himself without permissions for more than seven days.. In case of sickness, the medical certificate he must be submitted within a week."
3. Under the circumstances the petitioner sought a reference in the year 1985 which was marked as C.B. Case No. 310-1985 before the Deputy Labour Commissioner, Lucknow. The State Government on consideration of the facts and circumstances of the case referred the matter on 18.7.1990 before the Industrial Tribunal. Lucknow on the following question:-
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4. The Tribunal issued notice to the parties. The parties submitted their statements before the Tribunal. Several documents were exhibited. On a detailed consideration of the facts of the case of the Tribunal held that absence without leave constitutes misconduct but it is not open to the employer to termination the services without notice or enquiry or at any rate without complying with the principles of natural justice. It relied upon a Supreme Court decision in the case of L. Robert D'souza vs. Executive Engineer, Southern Railway and Another, (1982) 1 SCC 654. It further held that the termination of services of the respondent No. 2 amounted to retrenchment and the same was unconstitutional and without complying with all the perquisites of such termination, as such the respondent No. 2 was entitled to the reinstatement and she was entitled to 50% of the backwages from the date of termination of service till she is reinstated.
5. Counsel for the petitioner has urged before this Court that the award of the Tribunal should be set aside as the same was contrary to the Certified Standing Orders inasmuch as, the respondent No. 2 has failed to join her services after the expiry of the period of seven days. According to the Counsel there was an automatic termination of the services of the respondent No. 2 as she over stayed on leave without approval or absented herself without application for more than seven days. The Counsel argued that the services of the respondent No. 2 cannot survive inasmuch as, the same falls within the excepted categories of Section 2(oo). Section 2(oo) reads as follows:
"2. (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than disciplinary action, but does not include:-
(a) voluntary retirement of the
