V.M. Sahai, J.
1. The question which has been referred to Larger Bench by the learned Single Judge is extracted blow:-
'Whether removal of name of a workman from the muster-roll on the ground of abandonment amounts to retrenchment as contemplated by the Industrial Disputes Act, 1947 and the Uttar Pradesh Industrial Disputes Act, 1947?'
2. The facts in brief are that the petitioner is a small-scale unit engaged in sales and purchase of Tata Diesel Vehicles, Bajaj Scooters and other auto vehicles and was employing about 40 workmen. The establishment of the petitioner is a shop within the meaning of U.P. Shops and Commercial Establishments Act, 1962. The State of Uttar Pradesh has framed standing orders which are known as Standing Orders, 1972 which came into force under Section 3(b) of the U.P. Industrial Disputes Act, 1947 (in brief the U.P. Act) with effect from 14.8.1972. Sri Pratap Singh, the Respondent No. 3 (in brief the workman), was employed on 7.4.1971 in the petitioner's establishment. He applied for one day's casual leave on 13.11.1972, After expiry of leave he did not report for duty and remained absent for four weeks. On 5.12.1972 his name was struck-off from the register on the ground that he had abandoned his employment. He was informed about the order sent by registered as well as ordinary post on 6.12.1972. He reached the office on 6.12.1972 and signed the attendance register, which was cut-off by the Manager of the establishment. The workman raised an industrial dispute. The State Government on 25.7.1973 referred the dispute, under Section 10(1)(c) to the Labour Court, Kanpur which was registered as Adjudication Case No. 209/1973, as to whether the name of Sri Pratap Singh, Clerk had been validly struck-off on 5.12.1972 from the register depriving him from his work and as to what relief the workman was entitled
3. The Labour Court by its award dated 31.1.1980 held that the workman overstayed his leave but it was not a case of abandonment of employment. It directed reinstatement of the workman within a week and granted 25% back wages from 14.11.1972 till the date of reinstatement. The award was challenged before this Court. Two questions arose, whether absence by the workman after expiry of the leave amounts to abandonment of employment and whether striking-off the name of workman from muster-roll, due to absence without leave, after expiry of the period in the standing orders amounted to retrenchment. Since there was difference of opinion on these aspects, the learned Single Judge hearing this petition referred the matte to the Larger Bench to resolve the conflict. A Single Judge in Kshetriya Shri Gandhi Ashram, Magahar v. Ram Samujh Maurya and Ors., 1990 (61) Indian Factories and Labour Reports 1, held that where a workman has himself abandoned his job his service would be deemed to have been terminated automatically. It further held that abandonment of service shall not constitute retrenchment. In the other decision namely Afsar Mian v. Labour Court, Bareilly and Ors., 1991 (63) Indian Factories and Labour Reports 721, it was held that every termination, for whatsoever reason it may be, is retrenchment excepting the categories of termination specified in Section 2(oo) of the Central Act. Similarly in Arun Kumar Mathur v. Labour Court and Anr., 1993 (66) Indian Factories and Labour Reports 211, Section 2(oo) of the Central Act was interpreted and it was held that voluntary abandonment of service would not fall within the exception of Section 2(oo) and removal of the name of a workman from the muster-roll amounted to retrenchment.
4. We have heard Sri J.N. Tewari learned Senior Counsel for the petitioner and Sri K.P. Agarwal learned Senior Counsel appearing for the respondents. We would first take up the question of abandonment. The petitioner's service was terminated on the ground of absence from duty in view of Clause 15(ix) of the Standing Orders which is extracted below:-
'A workman remaining absent without leave for a period exceeding 15 days at a stretch shall be deemed to have abandoned the employment.'
It provided that if a workman remained absent without leave for a period exceeding 15 days at a stretch, he shall be deemed to have abandoned his employment. Such standing orders were framed by industrial units after enactment of Industrial Employment (Standing Orders) Act, 1946 requiring the Management to define clearly the conditions of employment of the workman working in the establishment. In Uptron India Ltd. v. Shammi Bhan and Anr., 1988 (79) Indian Factories and Labour Reports 233, the Apex Court while considering a case of permanent employee took the view that a clause providing for automatic termination of service without there being any provision for opportunity of hearing to the delinquent employee was invalid. In . Scooters India Ltd. v. M. Mohammad Yaqub and Anr., 2001 (88) Indian Factories and Labour Reports 274, the Apex Court held that even if the standing orders provide that if an employee overstays leave then it results in automatic termination of his service, was bad if no opportunity of hearing was afforded. The decisions in Uptron India Ltd. and . Scooters India Ltd. were decisions rendered by two Judges. Sri J.N. Tewari has placed reliance oh a three Judges Bench decision of the Apex Court in Punjab & Sind Bank and Ors. v. Sakattar Singh, 2001 (88) Indian Factories and Labour Reports 383, wherein the Apex Court took the view that if an employee remained absent from duty without any leave for sufficiently long period then his absence from duty would amount to abandonment of service and no opportunity of hearing was required to be given to such an employee. This too was a case of permanent employee. But it appears the earlier decision in Uptron India Ltd. was not brought to the notice of the Bench. It was decided in favour of the Management relying on the decision in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr., 2000(85) Indian Factories and Labour Reports 807, where it was held that when a Bank employee unauthorisedly absented himself from work for the period exceeding the prescribed time limit of 90 days and the Bank having served a notice upon him requiring to submit an explanation to join work within the prescribed period of 30 days, as otherwise he would be deemed to have retired, was held to be proper and such action was not in violation of principles of natural justice. In Syndicate Bank (supra), the order of the Management was upheld because the Management by sending a show cause notice had complied with principles of natural justice. This was relied in Punjab & Sind Bank (supra), because the workman failed to bring on record any material to show that his absence from work was justified. In a later decision in . Lakshmi Precision Screws Ltd. v. Ram Bhagat, 2002 (95) Indian Factories and Labour Reports 43, this decision was explained and it was held '...............factual context differs in material particulars and even the bipartite settlement involved therein was much accommodative in nature'. It was further held that the doctrine of natural justice is an inbuilt requirement of standing orders and the workman was entitled for an opportunity of hearing before termination of his service even if the standing orders did not provide for affording any opportunity of hearing.
5. The Apex Court thus has settled that the services of a permanent for regular workman cannot come to an end automatically under the standing orders framed by the Industrial Units without complying with principles of natural justice except where the workman does not avail the opportunity afforded by the employer or does not place any material before the Court to prove that his absence was bona fide, thereby, giving rise to an inference that even if opportunity would have been given, he had no explanation to offer. The services of a permanent or regular workman, therefore, could not come to an end under Clause 15(ix) of the Standing Order unless the principles of natural justice was complied. Since the workman in Kshetriya Shri Gandhi Ashram, Magahar (supra) was a permanent workman his service could not come to an end automatically without compliance of principles of natural justice.
6. The next question is whether removal of name of a workman from muster-roll amounts to retrenchment. The word 'retrenchment' has been defined both in Central and U.P. Act. Section 2(oo) of the Industrial Disputes Act is extracted below:-
'retrenchment means the termination by the employee of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but docs 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
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health.'
7. The definition in Section 2(s) of the U.P. Industrial Disputes Act, 1947 is extracted below:-
''Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include:-
(i) voluntary retirement of the workmen; or
(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf.'
8. Both these definitions have come up for consideration from time to time and the Courts have given wider meaning to the word 'retrenchment'. It has been held that except for the circumstances mentioned in the clauses, every termination of workman would be retrenchment. In Uptron India Ltd. (supra) which was a decision from this Court, the Apex Court held that the latter part of clause (bb) of Section 2(oo) of the Industrial Disputes Act, namely, termination in pursuance of a stipulation to that effect in the contract was confined to fixed term employment referred in earlier part. Therefore, in absence of fixed term contract the termination of service of a workman or striking-off his name from muster-roll would not be covered in the exception to retrenchment. The petitioner's service had been terminated by the respondents under the standing orders treating it to be abandonment of employment. The abandonment of service has not been excluded from the definition of retrenchment. Therefore, before terminating the services of the workman the petitioner was required to follow the mandatory procedure of retrenchment. The removal of the name of workman from the register and depriving him from work would amount to rentrechment and would be bad, as mandatory provisions of retrenchment had not been followed, For these reasons we are of the opinion that the learned Single Judge in Kshetriya Shri Gandhi Ashram, Magahar v. Ram Samujh Maurya and Ors., 1990 (61) Indian Factories and Labour Reports 1, did not lay down the law correctly. The answer to the question referred in the circumstances is as under:-
'Where the name of a permanent or regular workman is removed from the muster-roll on the ground of abandonment of service it would amount to retrenchment as contemplated by the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947.'
9. Let the records be placed before the learned Single Judge.