The Management of Bokaro Steel Plant (Steel Authority of India Ltd.) Vs. the Presiding Officer, Labour Court, Bokaro Steel City and Havaldar Sharma, the Workman Concerned - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2 to join his duty but he failed to comply with such notice and therefore he lost his lien on the service. after some time he felt better and wanted to resume duty but to ensure that he was not suffering from any serious mental problem he was taken up.r.k. merathia, j.1. the petitioner has prayed for quashing the award dated 26.9.2000 pronounced on 10.7.2001 passed by respondent no. 1 in reference case no. 06 of 1994 directing the petitioner to reinstate respondent no. 2 with full back wages.2. the following dispute was referred by notification dated 24.1.1994.' 'whether the termination of services of shri hawaldar sharma, rigger, staff no. 293910 sintring plant (o), bokaro steel plant, bokaro steel city is proper? if not, whether he should be reinstated on the job or/and compensation be paid? '3. learned counsel for the petitioner submitted that in the letter of appointment, there was clear stipulation that respondent no. 2 will be governed by the standing orders. the workman absented from 20.1.86 without any information to the management. accordingly the management had to issue a registered letter/notice dated 5.2.86 asking respondent no. 2 to report by 20.2.86. but neither he reported on duty nor sent any reply. accordingly by office order dated 24.3.1986 he was informed that as per the provisions of clause 20(xi) of the standing order his name has been struck off from the rolls of the company thereafter respondent no. 2 submitted an application dated 14.4.1986 enclosing purported medical certificate issued by mansik arogyashala, ranchi dated 13.4.86. he also filed an application before the grievance committee. on 23.4.1986 he filed application for re-employment. after all this he again vanished, and lost chance of consideration of his grievance. he further, submitted that respondent no. 2 did not deny such statements made in the written statement of the petitioner. he further submitted that it is not a case of retrenchment. a notice was sent to respondent no. 2 to join his duty but he failed to comply with such notice and therefore he lost his lien on the service. in such circumstances it was not necessary to hold a departmental enquiry or to follow the principles of natural justice. he relied on the judgments reported in : (2000)illj1630sc sindicate bank v. general secretary and 2004(4) jcr 622(jhr.) heavy engineering corporation v. jetha oraon. he lastly submitted that respondent no. 2 was never serious about his service. his name was struck off from the rolls in march, 1986. the reference was made in 1994. in between he did not pursue the matter diligently and therefore, the claim was also stale.4. learned counsel appearing for respondent no. 2 submitted that respondent no. 2 became mentally disturbed and therefore, he was unable to attend his duty from 20.1.86. he sent application for leave to his controlling officer through his neighbour and co-worker shri n.c. das but he did not receive any reply to the same. after some time he felt better and wanted to resume duty but to ensure that he was not suffering from any serious mental problem he was taken up. by his friends and relatives to mansik arogyashala, ranchi, where he was examined on 13.4.86 and some medicines were prescribed and it was certified that he is fit to resume his duty. thereafter on 17,4.86 he was examined and declared fit for duty by the medical officer of bokaro steel plant hospital of the company and accordingly he reported for duty on 18.4.86 but he was not allowed to join. he further submitted that the dispute was not stale as respondent no. 2 was pursuing the matter and he was not responsible for delay. he further submitted that the ground of delay was not pressed by the management before the labour court. he further submitted that notice dated 5.2.86 was not received by respondent no. 2.5. the question is whether it is a case of retrenchment?6. admittedly respondent no. 2 remained absent from 20.1.86 till 17.4.86 without obtaining leave. he could not prove that he sent leave application. he also could not rebutt the presumption of service of notice, sent by registered post. he could not show that he pursued his explanations of absence diligently.it was accepted on behalf of respondent no. 2 before the labour court that as per clause 20(xi) of the standing order, the management had right to strike off his name for unauthorized absence, but it was submitted that the standing order cannot override the provisions of section 25f of the industrial disputes act (hereinafter to be referred as the act.). the labour court accepted the said contentions of respondent no. 2 that striking of his name from the rolls of the company without holding any domestic enquiry and without giving any opportunity to respondent no. 2 amounted to retrenchment without complying with the provisions of section 25f of the act. accordingly, the said order dated 24.3.1986, striking off his name, was set aside and the petitioner was directed to reinstate respondent no. 2 with full back wages.7. in the facts and circumstances and the judgments noticed above, it cannot be held that it is a case of retrenchment and section 25f of the act was violated. even if it is accepted that the provisions of section 25f was not followed, respondent no. 2 has been adequately compensated in terms of the interim order passed in this writ application, under which he has been getting wages in terms of section 17b of the act from 28.9.2001.8. in the circumstances, the writ petition is allowed and the impugned award is set aside. however, there will be no order as to costs.