S.H.A. Raza, J.@mdashThe services of the workman respondent No. 2 were terminated in view of the Standing Order 9.3.12- The Standing Orders are being reproduced as hereunder :
"9.3.12. Any workman who remains absent, from duty without leave, in excess of the period of leave originally sanctioned or subsequently extended for more than 10 consecutive days, he shall be deemed to have left the services of the Company of his own accord, without notice, thereby terminating his contract of service with the Company and his name will, accordingly, be struck off the rolls."
Thereafter an industrial dispute was raised by the workman. The Presiding Officer of the Labour Court at Lucknow in its award held that the termination of the petitioner''s services amounted to retrenchment in the eye of law and he must be deemed to be continued in service and he is entitled for full back wages.
2. Being aggrieved against the award of the Labour Court, the employer Scooters India Limited has filed the present writ petition. The Standing Order was considered by this Court in the case of Vijat E. V. Eldred v. M/s. Scooters India Ltd. and others 1992 (1) SCC 484. wherein it was observed that Clause 9.3.12. gave arbitrary power in the hands of the management to treat the services of the workman terminated, if the workman failed to attend to his duties for ten consecutive days. The powers vested in the management is unbriddled and uncanalised. it is also obnoxious for the reasons that it violates the principles of natural justice inasmuch as the workman was denied an opportunity to show cause as to what reasons had compelled him in not attending his duties. The Court was of the view that Clause 9.3.12 of the Standing Orders is opposed to public policy and is hit by Article 23 of the Contract Act.
3. The Civil Appeal bearing No. 3486 of 1992 with SLP (C) No. 14812 of 1992 was filed by the Scooters India Limited before the Hon''ble Supreme Court. The appeal was allowed and the judgment and order of the High Court was set aside resulting into the dismissal of the writ petition filed by the respondent workman in the High Court. it is relevant to reproduce the relevant observation of Hon''ble Supreme Court which indicated the reasons for allowing the appeal and dismissal of the writ petition.
"The above facts are alone sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed question of fact for which remedy under the industrial laws was available to the workman. That apart, the writ petition was filed more than 6 years after the date on which the cause of action is said to have arisen and there being no cogent explanation for the delay, the writ petition should have been dismissed on the ground of laches alone. it is also extraordinary for the High Court to have held Clause 9.3.12. of the Standing Orders as invalid. Learned counsel for the respondent rightly made no attempt to support this part of the High Court''s order. in view of the fact that we are setting aside the High Court''s judgment, we need not deal with this aspect in detail."
4. Two years after the said judgment on validity of similar Standing Orders was assailed before the Hon''ble Supreme Court in Uptron India Limited v. Shammi Bhan and another. The relevant certified Standing Order is quoted below :
"The services of a workman are liable to automatic termination if he overstays on leave without permission for more than seven days. in case of sickness, the medical certificate must be submitted within a week."
Para 22 of the judgment in the case of
5. in para 23 of the judgment in the case of Uptron India Limited v. Shammi Bhan and another (supra), the Hon''bie Supreme Court has observed :
"23. in view of (his observation, the question whether the stipulation for automatic termination of services for overstaying the leave would be legally bad or not, was not decided by this Court in the judgment relied upon by Mr. Manoj Swarup. in that judgment, the grounds on which the interference was made were different. The judgment of the High Court was set aside on the ground that it could not decide the disputed question of fact in a writ petition and the matter should have been better left to be decided by the Industrial Tribunal. Further, the High Court was approached after more than six years of the date on which the cause of action had arisen without there being any cogent explanation for the delay. Mr. Manoj Swarup contended that it was conceded by the counsel appearing on behalf of the employee that the provision in the Standing Orders regarding automatic termination of services is not bad. This was endorsed by this Court by observing that "Learned counsel for the respondent rightly made no attempt to support this part of the High Court''s order." This again cannot be treated to be a finding that provision for automatic termination of services can be validly made in the Certified Standing Orders. Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place."
It was further observed in para 25 of the judgment :
"25. In view of the above, we are of the positive opinion that any . clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "Production" in a Factory or Industrial Establishment, would be bad if it docs not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically."
After holding that by means of the certified Standing Orders the services cannot be deemed to be terminated automatically. Hon''ble Supreme Court delved into the provisions of Section 2(oo) of the Industrial Dispute Act (Central) which defines retrenchment.
6. By the amending Act XLIX of 1984, two further exceptions were introduced in the definition by inserting clause (bb) with effect from 18.8.1984 ; one was the termination of service on the ground of continued ill-health of the workman and the other was termination of service on account of non-renewal of the contract of employment on the expiry of the term of that contract. if such contract of employment contained a stipulation for termination of service and the services of the workman are terminated in accordance with that stipulation. such termination, according to clause (bb) would also not amount to "Retrenchment".
7. it was further observed in Uptron India Ltd. (supra) at para 31 of the judgment :
"31. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. in the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely. that the termination was in pursuance of a stipulation to that effect in the contract of employment, does not arise."
8. it was further observed in para 32 of the said judgment :
"32. The contract of employment referred to in the earlier part of Clause (bb) has to be the same as is referred to in the latter part. This is clear by the use of words "such contract" in the earlier part of this Clause. What the clause, therefore, means is that there should have been a contract of employment for a fixed-term between the employer and the workman containing a stipulation that the services could be terminated even before the expiry of the period of contract. if such contract, on the expiry of its original period, is not renewed and the services are terminated as a consequence of that period. it would not amount to "Retrenchment". Similarly, if the services are terminated even before the expiry of the period of contract but in pursuance of a stipulation contained in that contract that the services could be so terminated, then in that case, also, the termination would not amount to ''retrenchment''.
This view finds support from a decision of this Court in
But as in the case of the workman in Uptron India Limited v. Shammi Bhan and another (supra), this case does not fall in either of the two situations contemplated by Clause (bb). The ''Rule of Exception'', therefore, is not applicable in the instant case and consequently the finding recorded by the Tribunal on "retrenchment" cannot be disturbed."
9. in the present case, there is no dispute that at the time, when the services of the petitioner were retrenched, he was a permanent employee working under M/s, Scooters India Limited. As he overstayed and did not join the duties even after the lapse of 10 days, his services were terminated without giving him any opportunity of show cause. The Standing Order does not provide for giving an opportunity to an workman to show cause against the absence. Thus, it is evident that Standing Order is against the principles of audi alterm partem which is embodied in Article 14 of the Constitution of India. if this Court do not read the principles of natural justice in it. then the Standing Order 9.3.12. would be ultra vires. Hence, instead of declaring it as ultra vires, the principles of natural justice can be read, meaning thereby that the services of a permanent workman can only be terminated in accordance with the said Standing Orders, if the workman is given a reasonable opportunity to show cause against the termination of his services. That was actually done by the Labour Court which observed that the automatic termination of the services of the petitioner amounted to ''retrenchment'' as contemplated u/s 2(oo) of the Industrial Dispute Act, and as such principle of natural justice was violated by not giving an opportunity to "the petitioner to show cause against his absence. The Labour Court rightly directed the reinstatement of the workman into service with back wages. The judgment of the Labour Court has illustrated correctly the law which was before it and its judgment cannot be faulted. The writ petition is accordingly dismissed. The interim order stands vacated.
