1. Employee failed to rejoin duty after leave; claimed illness; application for reinstatement filed under Section 33-A, Industrial Disputes Act. (Para 1 )
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1967 Supreme(SC) 301
SUPREME COURT OF INDIA
K.N.Wanchoo, C.J.I., G.K.Mitter, J.
National Engineering Industries Limited
Versus
Hanuman
Case No. : 549 of 1967
Date of Decision : 10/25/67
Advocates Appeared: De Niren : Kumar Vineet : Maheshwari B.P. : Nagaratnam R. : Pappu Shyamala : Ramamurthi M.K.
Important Points
Automatic termination of service under certified standing orders (e.g., losing lien on appointment for unauthorized absence) does not contravene Section 33 of the Industrial Disputes Act, 1947, rendering an application for reinstatement under Section 33-A non-maintainable.
Subject
Labour Law - Industrial Disputes
Act Referred
Headnote
(A) Industrial Disputes Act, 1947 - Sections 33 and 33-A - Certified Standing Orders - Automatic termination of service - Where a standing order provides that a workman loses his lien on appointment if he fails to report for duty within a specified period after leave expires, such service is automatically terminated - In such cases, there is no contravention of Section 33, and an application under Section 33-A is not maintainable. (Paras 6, 7, 12)
(B) Appeal - Interference with findings of fact - Appellate court is slow to interfere with findings of quasi-judicial tribunals unless the finding is ex facie perverse - A finding is perverse if it is not supported by evidence on record. (Para 5)
Facts of the case:
An employee took leave and failed to report for duty upon its expiry. The employee claimed to have sent a medical certificate for extension, but the employer denied receipt. The employer contended that under the certified standing orders, the employee lost his lien on the appointment by not reporting for duty within eight days of the expiry of leave, leading to automatic termination. The employee sought reinstatement under Section 33-A of the Industrial Disputes Act, 1947.
Findings of Court:
The finding of the lower court regarding the employee's continued illness was perverse as the witnesses failed to corroborate the claim. The standing order providing that a workman loses his lien on appointment upon failure to report for duty within eight days of leave expiry constitutes automatic termination of service.
Issues: Whether the finding of the lower court regarding the employee's illness was perverse and whether the automatic termination of service under standing orders precludes the maintainability of an application under Section 33-A of the Industrial Disputes Act, 1947.
Ratio Decidendi: Losing lien on an appointment is equivalent to losing the appointment itself. When service terminates automatically by operation of a standing order, it does not constitute a contravention of Section 33 of the Industrial Disputes Act, 1947, and therefore, a remedy under Section 33-A is unavailable. (Paras 6, 7, 8)
Result: Appeal allowed.
(B) Appeal - Interference with findings of fact - Appellate court is slow to interfere with findings of quasi-judicial tribunals unless the finding is ex facie perverse - A finding is perverse if it is not supported by evidence on record. (Para 5)
Facts of the case:
An employee took leave and failed to report for duty upon its expiry. The employee claimed to have sent a medical certificate for extension, but the employer denied receipt. The employer contended that under the certified standing orders, the employee lost his lien on the appointment by not reporting for duty within eight days of the expiry of leave, leading to automatic termination. The employee sought reinstatement under Section 33-A of the Industrial Disputes Act, 1947.
Findings of Court:
The finding of the lower court regarding the employee's continued illness was perverse as the witnesses failed to corroborate the claim. The standing order providing that a workman loses his lien on appointment upon failure to report for duty within eight days of leave expiry constitutes automatic termination of service.
Issues: Whether the finding of the lower court regarding the employee's illness was perverse and whether the automatic termination of service under standing orders precludes the maintainability of an application under Section 33-A of the Industrial Disputes Act, 1947.
Ratio Decidendi: Losing lien on an appointment is equivalent to losing the appointment itself. When service terminates automatically by operation of a standing order, it does not constitute a contravention of Section 33 of the Industrial Disputes Act, 1947, and therefore, a remedy under Section 33-A is unavailable. (Paras 6, 7, 8)
Result: Appeal allowed.
Legal Category Hierarchy
Advocates:
B.P.MAHESHVARI, M.K.RAMAMURTHY, NIREN DEY, R.NAGARATNAM, SHYAMALA PAPPU, VINIT KUMAR
B.P.MAHESHVARI, M.K.RAMAMURTHY, NIREN DEY, R.NAGARATNAM, SHYAMALA PAPPU, VINIT KUMAR
Table of Contents
2. Whether service was automatically terminated under standing orders for failure to rejoin, rendering an application under Section 33-A of the Industrial Disputes Act non-maintainable. (Para 2 , 4 )
3. Finding of continued illness was perverse due to lack of corroboration; loss of lien under standing orders constitutes automatic termination of service. (Para 5 , 6 )
4. Where standing orders provide for automatic termination upon a contingency, Section 33 of the Industrial Disputes Act is not contravened, and Section 33-A is inapplicable. (Para 6 , 7 , 12 )
5. Appeal allowed; order for reinstatement set aside; automatic termination of service upheld. (Para 14 )
6. When will a court interfere with findings of fact recorded by a quasi-judicial tribunal?
The court is generally slow to interfere with such findings unless it is shown ex facie that the finding recorded is perverse, such as when evidence fails to corroborate the party's claims. (Para 5 )
7. What is the legal effect of a standing order stating a workman loses his lien on appointment for failing to rejoin duty?
Such a provision means the workman's services are automatically terminated upon the happening of the contingency, as a workman who has lost his lien on his appointment cannot continue in service. (Para 6 , 8 )
8. Does Section 33 of the Industrial Disputes Act apply when service is automatically terminated under standing orders?
No. Where a workman's service terminates automatically under a standing order, there is no contravention of Section 33, and consequently, an application under Section 33-A is not maintainable. (Para 7 , 12 )
9. Can an employer choose between different provisions of standing orders to effect termination?
Yes, an employer is free to resort to any applicable provision of the standing orders unless it is demonstrated that the choice of a particular provision was made mala fide. (Para 13 )
K.N.WANCHOO, CJI.
(1) THIS is an appeal by special leave in an industrial matter and arises in the following circumstances. Respondent Hanuman was in the service of the appellant. He took leave from 3rd to 9/04/1965 and in that connection a certificate from the Employees State Insurance Dispensary (hereinafter referred to as the Dispensary) was produced. He should have joined on 10/04/1965. but he did not do so. His case was that he had sent another certificate from the Dispensary on 10/04/1965 for further leave through one Prahlad Singh. Thereafter he was given a fitness certificate on 19/04/1965 and was required to join on 20th April, 1.965. He appeared to report for duty on 20/04/1965, but he was not allowed to join on the ground that his service stood terminated. As an industrial matter was pending at the time in which he was concerned as a workman, he made an application under s. 33-A of the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to as the Act) for reinstatement.
(2) THE case of the appellant on the other hand was that Hanuman respondent was on leave from April 3 to April 9, 1965 on the basis of the certificate from the Dispensary. The appellant however contended that no certificate was received thereafter on 10/04/1965 through Prahlad Singh as alleged by Hanuman. Further Hanuman did not appear to rejoin till 20/04/1965. Consequently in view of s.o. (i) in Section G of the Certified Standing Orders Hanuman lost his lien on his appointment. The appellants case thus was that Hanumans service stood terminated automatically under the Standing Orders and no order as such was passed by the appellant terminating his service. In consequence there was no contravention of s. 33 of the Act and therefore Hanumans application under s. 33-A was not maintainable.
(3) TWO questions thus arose before the labour court. The first was whether Hanuman continued ill from April 10 to April 19. 1965 and whether he had sent the certificate in support of that illness from the Dispensary, and the second was whether the application was maintainable under s. 33-A of the Act in view of the alleged automatic termination of Hanumans service under the Standing Orders. On the first point the labour court held that Hanuman had continued ill from April 10 to April 19, 1965 and that he had sent the certificate through Prahlad Singh on 10/04/1965. On the second question the labour court seems to have held that the service of Hanuman was not automatically terminated under the Standing Orders and in any case the appellant should have taken his explanation and so there was denial of natural justice for the service of Hanuman was terminated without any enquiry. The labour court therefore decided in favour of Hanuman and ordered his reinstatement with all back wages.
(4) IN the present appeal, the appellant raises two points. It is first contended that the finding of the labour court that Hanuman continued ill from April 10 to April. 19, 1965 was perverse. Secondly, it is contended that the service of Hanuman stood automatically terminated under the relevant standing order; as such s. 33 was not contravened and no application under s. 33-A lay.
(5) ORDINARILY this court is slow to interfere with findings of fact recorded by quasi judicial tribunals in an appeal under Article 136 of the Constitution. But this court does so if it is shown ex facie, that the finding recorded is perverse. Itdoes appear to us in this case that the finding that Hanuman continued ill from April 10 to April 19, 1965 is perverse. It is true that Hanuman stated that he had sent the certificate through Prahlad on 10/04/1965. In support of his statement he examined Prahlad Singh and Dr. Girraj Prasad who was in-charge of the Dispensary at the time when evidence was given in 1966. Prahlad Singh did not support Hanuman and was treated as hostile. Prahlad Singh had given an affidavit in favour of Hanuman but in his statement b
