Punjab State Electricity Board Vs. Labour Court and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - when the conciliation proceedings failed, the matter was referred to the labour court by the government under section 10(1)(c) of the industrial disputes act. the labour court, vide its award dated october 28, 1991, held that the order of retrenchment was bad and the workman is entitled to reinstatement but since he was not without blame as he did not even assert that he ever reported for duty or even sent any communication right from the date, i. the claim of the workman was resisted by the management and in the written statement that was filed by it, it was clearly pleaded that the workman himself abandoned the job with effect from february 4, 1984. he had proceeded on unsanctioned leave on february 4, 1984, and thereafter never joined his duties.v.k. bali, j. 1. the sole question that requires to be determined in the present writ filed by the punjab state electricity board, patiala, under article 226/227 of the constitution of india, challenging the award rendered by the labour court, ludhiana, is as to whether holding of enquiry in respect of misconduct of workman before ordering his retrenchment, is mandatory even if the misconduct is otherwise proved on the records of the case.2. the facts that have been proved on the records of the case, reveal that swaran singh joined service of the petitioner board on february 23, 1977, and was promoted as lineman on october 3, 1978. while he was working on the promoted post, he applied for casual leave from february 4, 1984, to february 8, 1984, and left the office without getting the same sanctioned from the competent authority. even after the expiry of unsanctioned causal leave, he did not return to his duty and abandoned the job, as per the case of the petitioner. the sub divisional officer of the board addressed a letter to him asking him to resume his duties. thereafter, the executive engineer addressed yet another letter to him on june 27, 1984, at his permanent home address, once again asking him to join his duties. the same was returned by the postal authorities with the remarks that 'he had gone abroad'. thereafter, notice was published in the daily the tribune dated may 6, 1985, directing the workman to report for duty within thirty days, failing which his services shall be terminated. even mis public notice evoked no interest with him as he did not resume his duties even after the expiry of the period mentioned therein. the board, considering the circumstances, as mentioned above, passed an order removing him from service on december 12, 1985. the order, however, was given effect to from february 4, 1984, the day on which he had abandoned the services of the board. it is pleaded that the superintending engineer of the board while passing the order dated december 12, 1985, was of the opinion that, in the circumstances of the case, it was not possible to hold an enquiry against the workman as he had gone abroad and even after repeated communications asking him to join, he had not done so. the superintending engineer, therefore, dispensed with the holding of enquiry under rule 14(ii) of the employees punishment and appeal regulations, 1971, and passed a formal order as mentioned above. it is for the first time on april 26, 1986, that is, after the expiry of more than two years since the workman had gone on unsanctioned leave, mat he served a demand notice on the petitioner-management stating that his services had been wrongly terminated. when the conciliation proceedings failed, the matter was referred to the labour court by the government under section 10(1)(c) of the industrial disputes act. the labour court, vide its award dated october 28, 1991, held that the order of retrenchment was bad and the workman is entitled to reinstatement but since he was not without blame as he did not even assert that he ever reported for duty or even sent any communication right from the date, i.e., february 4, 1984, to the date of demand notice, he was not entitled to back wages from february 4, 1984, the date of termination to april 26, 1986, when he served a demand notice on the management. obviously, while returning a finding in favour of the workman that he was entitled to be reinstated with continuity of service, it was held that it was not a case of abandonment and the department, in fact, had taken action against him for his long absence from duty but before the order of termination could be passed, an enquiry had to be held in the matter.3. learned counsel for the petitioner board vehemently contends that it is always open to the management to prove the guilt of the workman during the course of proceedings before the labour court and in case the management is able to prove so, the only relief that a workman can pet is to ask for the wages up to the date an older is passed by the labour court holding him guilty of the charges that might have been levelled against him. in the present case, he contends, from the pleadings of the parties and the evidence that was recorded before the labour court, it was proved beyond any shadow of reasonable doubt that th workman had in fact left the job on account of his own volition and had not cared to resume his duties even though several letters were written to him and even a notice was got issued in the newspaper. all that workman could say before the labour court was that he had made a request to re-join the duties on may 19, 1985, i.e., after about a year and three months from the date he had gone on unsanctioned leave, but for which there was no proof placed on the records of the case, except a bald assertion in the statement made by him that when his father told him about the press publication, he approached the s.d.e. circle for posting orders, contends learned counsel.4. mr. s.p. soi, learned counsel appearing on behalf of the respondent-workman, however, contends that the management had not claimed an issue on the point and the case of the workman cannot be prejudiced as he might have been in a position to explain his absence if his attention had been adverted to the fact that the allegation against him with regard to unsanctioned leave and absence from duty, is the subject-matter of enquiry before the labour court.5. after hearing learned counsel for the parties and going through the records of the case, this court is of the view that when the pleadings of the management while defending the cause of the workman unmistakably points towards the guilt of the workman and the parties lead evidence, then non-framing of an issue would pale into insignificance. the claim of the workman was resisted by the management and in the written statement that was filed by it, it was clearly pleaded that the workman himself abandoned the job with effect from february 4, 1984. he had proceeded on unsanctioned leave on february 4, 1984, and thereafter never joined his duties. several letters were written by the authorities asking him to report for duty. ultimately, a press note was got published in the newspaper wherein the workman was directed to resume his duties within thirty days, failing which his services shall be terminated. in the affidavit that was filed by the workman with his claim applications all that he had mentioned was that due to threat of some anti-social elements, he could not join his duties at his place of posting. there is not even a word mentioned as to what was the threat, when was the same given to him and as to whether while going on unsanctioned leave, he had ever mentioned this fact in his application seeking leave. that apart, he did not even write to the management at any given time but for, as alleged by him on may 19, 1985, that he was unable to join duties on account of threat given to him. there is, thus, no justification pleaded by him in his claim application for remaining absent from duty for a period of more than two years. as mentioned above, in his evidence led before the labour court, he only tendered his affidavit, reference of which has been given above, and in addition only stated that after his father had intimated him about the publication done in the newspaper on may 19, 1985, he had immediately approached the s.d.e., circle, ludhiana. even the labour court returned a finding on this crucial point that it was nowhere asserted by the workman that he had ever reported for duty or sent any communication to the department from february 4, 1984, to the date of issuing demand notice which was given on april 26, 1986. the charge on which the workman was retrenched was thus proved to the hilt. in these circumstances, the workman cannot urge that had there been an issue that he was absent from duty for a period of two years without any cause, it should have been proved before the labour court. that apart, this court in the exercise of the powers conferred on it under article 226 of the constitution of india, is primarily concerned with the dispensation of justice and it is not necessary, where there may be some infringement in law while retrenching the workman, to necessarily reinstate him with continuity of services, howsoever deplorable and blameworthy might be his conduct. it will be too inequitious to foist upon the management a workman who had been guilty of gross misconduct of remaining absent for more than a period of two years without even informing it, without obtaining leave for initial four days and for being absent without there is some evidence to show that he had gone abroad.6. for the reasons recorded above, this petition succeeds. order, annexure p-3, passed by the labour court, ludhiana, is quashed. it is true that the management passed the order of retrenchment on december 12, 1985, and made it effective from retrospective date when the workman had gone on unsanctioned leave. order, to that extent, is certainly bad but in the peculiar facts and circumstances of this case, and particularly while considering that the workman actually did not work, he shall not be entitled to the wages for that period on the well known principle of 'no work, no pay'. there shall, however, be no order as to costs.