1. Termination of service for unauthorized absence under certified standing orders — Dispute over whether the employee was prevented from reporting for duty — Challenge to the legality of termination. (Para 1 , 2 )
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1993 Supreme(SC) 489
SUPREME COURT OF INDIA
BEFORE KULDIP SINGH, V. RAMASWAMI AND K. RAMASWAMY, JJ.
D.K. YADAV
Versus
J.M.A. INDUSTRIES LTD.
Civil Appeal No. 166(NL) of 1983{From the Award dated April 19, 1982 of the Labour Court Haryana at Faridabad in Reference No. 227 of 1981}
Decided on 7-51993
Advocates appeared:
R.K. Jain, Senior Advocate (R.P. Singh, Aseem Malhotra, Ashish Verma, Manoj Goel, R.K. Khanna and Ms Abha R. Sharma, Advocates, with him) for the Appellant;
Dr Anand Prakash, Senior Advocate (I. Ghosh for M/s Fox Mandal & Co. and Som Mandal, Advocates, with him) for the Respondent.
Important Points
Termination of employment, including 'automatic' termination under standing orders, affects the right to livelihood under Article 21. Such actions must adhere to the principles of natural justice and Article 14, ensuring the procedure is just, fair, and reasonable, providing the employee a reasonable opportunity to be heard.
Subject
Employment Law - Termination of Employment
Act Referred
Headnote
Industrial Disputes Act, 1947 – Section 25-F, 2 - Entitled to reinstatement - Special leave is against award - Respondent, by its letter which was received by appellant intimated appellant wilfully absented from duty continuously for more than 8 days without leave or prior information or intimation or previous permission from management and therefore, "deemed to have left service of company on your own account and lost your lien and the appointment with effect - In support thereof reliance was placed on clause 13(2)(iv) of its Certified Standing Order - Appellant averred that despite his reporting to duty and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register - He pleaded that he was not permitted to join duty without assigning any reasons - Letter was marked herein as Annexure A wherein he explained the circumstances in which he was prevented to join duty – Held, Tribunal did not record any conclusive finding in this behalf - It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with service of appellant - Therefore, Court hold that the principles of natural justice must be read into Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice - Management did not conduct any domestic inquiry nor gave the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice - Appeal is allowed.
Legal Category Hierarchy
- constitutional law
- administrative law
- labour and industrial law
Advocates:
ABHA R.SHARMA, AMIAN GHOSH, ANAND PARKASH, Ashish Varma, ASIM MALHOTRA, FOX MANDAL AND CO., MANOJ GOEL, R.K.JAIN, R.K.Khanna, R.P.SINGH PAL, SOM MANDAL
ABHA R.SHARMA, AMIAN GHOSH, ANAND PARKASH, Ashish Varma, ASIM MALHOTRA, FOX MANDAL AND CO., MANOJ GOEL, R.K.JAIN, R.K.Khanna, R.P.SINGH PAL, SOM MANDAL
Table of Contents
2. Management contended termination was automatic under standing orders; employee argued he was prevented from reporting for duty and the action violated principles of natural justice. (Para 1 , 5 , 6 )
3. Striking off names from rolls constitutes retrenchment and misconduct, requiring a fair procedure and adherence to principles of natural justice to avoid arbitrariness under the Constitution. (Para 4 , 6 , 7 , 11 , 13 , 15 )
4. Procedure for depriving a person of livelihood must be just, fair, and reasonable under Articles 14 and 21, necessitating the application of principles of natural justice. (Para 10 , 11 , 12 , 14 , 15 )
5. Termination quashed — Direction for reinstatement with fifty per cent back wages. (Para 16 )
6. Does striking off a workman's name from the muster-rolls for unauthorized absence constitute termination or retrenchment?
Yes. Striking off the name from the rolls for unauthorized absence amounts to termination of service and retrenchment. Such absence is considered misconduct, and termination on these grounds without complying with minimum principles of natural justice is not justified. (Para 6 )
7. Do principles of natural justice apply to administrative orders?
Yes. The distinction between quasi-judicial and administrative orders has been obliterated. Any administrative order involving civil consequences—including those affecting civil liberties or material deprivations—must be made consistently with the rules of natural justice to prevent arbitrariness. (Para 7 , 9 , 11 )
8. How do Articles 14 and 21 of the Constitution protect the right to livelihood?
Article 21 guarantees the right to life, which includes the right to livelihood. Article 14 ensures that any procedure for depriving a person of their livelihood must be just, fair, and reasonable, not arbitrary or oppressive. (Para 12 , 13 , 14 )
9. Can a certified standing order that allows automatic termination be enforced without an inquiry?
No. Principles of natural justice must be read into such standing orders. Termination without providing a reasonable opportunity to be heard or conducting a domestic inquiry is arbitrary and violates Article 14 of the Constitution. (Para 14 , 15 )
JUDGMENT
K. RAMASWAMY, J.—This appeal by special leave is against the award of the Labour Court, Haryana at Faridabad dated April 19, 1982 which was published in the State Gazette on August 10, 1982. It upheld the termination of the appellants service as legal and valid. The respondent, by its letter dated December 12, 1980 which was received by the appellant on December 19, 1980, intimated that the appellant wilfully absented from duty continuously for more than 8 days from December 3, 1980 without leave or prior information or intimation or previous permission from the management and, therefore, "deemed to have left the service of the company on your own account and lost your lien and the appointment with effect from December 3, 1980". In support thereof reliance was placed on clause 13(2)(iv) of its Certified Standing Order. The appellant averred that despite his reporting to duty on December 3, 1980 and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register. He pleaded that he was not permitted to join duty without assigning any reasons. His letter of December 3, 1980 was marked herein as Annexure A wherein he explained the circumstances in which he was prevented to join duty. The Tribunal found that the appellant had failed to prove his case. The action of the respondent is in accordance with the standing orders and it is not a termination nor retrenchment under the Industrial Disputes Act, 1947 for short the Act. The appellant in terms of Standing Orders lost his lien on his appointment and so is not entitled to reinstatement.
2. Clause 13(2)(iv) Standing Order reads thus:
"If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless
(a) he returns within 8 calendar days of the commencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be; and
(b) explains to the satisfaction of the manager/management the reason of his absence or his inability to return on the expiry of the leave, as the case may be. The workman not reporting for duty within 8 calendar days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the muster-rolls in such an eventuality."
A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calendar days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the manager/management of his reasons for absence or inability to return to the duty on the expiry of the leave. On completion of eight calendar days absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from the muster-rolls.
3. Section 2(oo) of the Act defines-
" retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(c) termination of the service of a workman on the ground of continued ill health."
Section 25-F prescribes mandatory procedure to be followed before the retrenchment becomes valid and legal and violation thereof visits with invalidation of the action with consequential results.
4. In Punjab Land Development and Reclamation Corpn, Ltd. v. Presid
