SooperKanoon Citation | sooperkanoon.com/634442 |
Subject | Labour and Industrial |
Court | Punjab and Haryana High Court |
Decided On | Aug-06-2009 |
Judge | K. Kannan, J. |
Reported in | (2009)156PLR820 |
Appellant | Chief Engineer, P.W.D. Public Health Branch and ors. |
Respondent | Presiding Officer, Labour Court and ors. |
Cases Referred | In Vivekanand Sethi v. Chairman |
K. Kannan, J.
1. The two writ petitions relate to the same award passed by the Labour Court, Patiala, one at the instance of the workman rejecting reference on the ground of limitation and another at the instance of the management, against the finding that the termination was bad and in violation of Section 2S-F of the Industrial Disputes Act.
2. The admitted case is that the workman had worked as a Pump Operator from 01.09.1978 to 14.09.1987. On 15.09.1987, he had absented himself and on the same day, a notice was purported to have been issued by the management directing him to join duty. Yet another notice was alleged to have been issued on 21.09.1987 warning him of the consequences that if he did not attend his duty within a period of 10 days, he will be deemed to have been relieved from duties due to his willful absence from duty. Securing no response from the workman for all these notices alleged to have been sent, a letter of termination dismissing the employee was made on 27.01.1988.
3. The above letter of termination was subject of dispute when a reference had been made to the Labour Court in the year 1989, but it was withdrawn at the instance of the workman on a plea that the petition had some technical flaws and he issued a demand notice again before filing fresh written statement which was the subject of reference in the year 1994, subsequent to the demand notice in the year 1993.
4. Before the Labour Court, it was contended on behalf of the management that the reference sought at the instance of the workman in the year 1994 for alleged termination in the year 1987 was belated and barred by limitation. The other line of defence was that the workman himself voluntarily abandoned the services and the termination took effect after the failure of the workman to respond to the notices and therefore, there is no scope for treating the termination to be bad.
5. As regards the contention that the reference was bad and barred by limitation, the learned Counsel appearing on behalf of the workman would state that the order of termination had been made on 27.01.1988 and the demand had been made within a period of one year and reference was also made within a period of one year. When it was withdrawn on 08.01.1993, a fresh demand notice had been issued immediately on 24.04.1993 and the reference was made in the year, 1994. Therefore, according to the learned Counsel, he had been pursuing his remedy without any let-up and it could not be stated that he had remained lax to characterize the reference as unduly belated. The learned Counsel appearing on behalf of the management refers to the decision of this Court in U.P. State Road Transport Corporation v. Babu Ram 2006(3) S.C.T. 486, that even a lapse of long time of 4-5 years would result in a workman losing his remedy under the Act. It must, however, be pointed out that the Hon'ble Supreme Court itself in the same judgment had observed that no formula of universal application could be laid down as to limitation for making a reference under Section 10 of the Industrial Disputes Act. The Hon'ble Court also specifically held that a Court which decides the issue must look for the causes or the justification offered for such delay. If the law as laid down by the Hon'ble Supreme Court were to be applied, it shall not be merely the length of period that would determine whether a reference was within time or not but the decision would follow the cause for the delay. I have already outlined above as to how right from the time of his termination on 27.01.1988, the workman was pursuing his remedy and the delay that had been occasioned was only on account of seeking a reference and not pursuing the case before the Labour Court when he was compelled to withdraw for some technical flaws and a fresh reference was again made consequent on a demand notice which was issued within one month from the date when the first reference was withdrawn. Although no specific reasons are available as to why the first reference was withdrawn or what the technical flaws were, I still see that there has been no deliberate loss of time by any conduct that could be attributed to the workman as a reckless or careless pursuit in litigation. I, therefore, hold that the finding of the Labour Court that the reference was barred was not correct and set aside the finding.
6. As regards the validity of termination of notice, the only point urged by the learned Counsel appearing for the workman is that absence from service by itself cannot result in automatic termination and an enquiry must have been held before proceeding to terminate the services of person. If only the explanation offered by the workman in the enquiry was not found acceptable, termination could have ensued. He also made a faint plea that the notices alleged to have been issued by the management never reached him and they were all fabricated for the purpose of the case. The learned Counsel appearing for the management would point out to the fact that although the termination order itself made references to the notices issued on 15.09.1987 and 21.09.1987, there had been no denial by the workman that the notices had not been sent. The despatch of notices were sought to be proved by reference to the despatch receipts under certificate of posting. There is no form of issue of notices prescribed under the Industrial Disputes Act and going by the fact that the workman himself had not denied the receipt of notices either in the demand notice or when the claim statements had been filed, I reject the contention of the workman that he had not received the notices.
7. The issue of the conduct of a workman abandoning the services have come up for consideration before several Courts as well as before the Hon'ble Supreme Court. Courts have held that if there are specific standing orders providing for automatic termination even then the rule of natural justi(sic) will have to be incorporated into that and the Court shall examine whether the termination was justified or not. Lakshmi Precision Screws v. Ram Bhagat : A.I.R. 2002 S.C. 2914. There are also instances of the Hon'ble Supreme Court considering cases of bank employees, who are governed by specific settlement terms that provide for automatic termination Punjab & Sind Bank v. Sakatar Singh 2001(1) S.C.T. 265. In all cases, the Courts have looked for appropriate notices by the management before treating the action as constituting voluntary abandonment of service. In Vivekanand Sethi v. Chairman, J&K; Bank Ltd. : (2005)5 S.C.C. 337, the Hon'ble Court insisted on formal, elaborate procedure for enquiry by employer as necessary for termination of employment. In this case, factually the absence from service was on 15.09.1987 and the notice was issued immediately on the same day on 15.09.1987. If a workman did not come on 15.09.1987, it was unusual that management issued notice on the same day and again subsequent notice had come about in a week's time on 21.09.1987. There had been no long gaps nor the workman could be stated to have remained absent for too longer period to infer abandonment. The inference of abandonment is an expression of persistent conduct of certain recalcitrance on the part of the workman. We can notice in this case that immediately after the order of termination, there has been a response from the management challenging it by notices and through reference. It is difficult to believe that the workman had abandoned the services and still was pursuing the remedy for minstatement even within a few months. The learned Counsel appearing for the workman also points out to how the management had treated him earlier when his services were terminated illegally and when he was directed to be reinstated by an order of Labour Court. I, therefore, find that the plea of abandonment cannot be accepted and in the absence of any enquiry, the order of terminating the services without following the mandate of Section 25-F of the Industrial Disputes Act, is bad in law.
8. The only question, therefore, that remains to be seen is whether the workman is entitled to be reinstated. While a direction for reinstatement shall normally follow if the retrenchment is found to be bad, there are some special circumstances in this case, which would come in the way for addressing the issue of reinstatement in favour of the workman. The workman was in a temporary service in Government department and public employment ought not to be seen as merely institutions making way for employment of persons. Here is a case where from the date of termination till date more than two decades have passed, no useful purpose would be served by directing reinstatement to a person who was a temporary employee. For the reasons that I have found that the termination was bad, 1 am of the view that the appropriate relief shall be to compensate the workman, which having regard to the length of service that he had put in, number of years of litigation and the justifiable expectation that the workman could have had by virtue of the wrongful termination, 1 assess the compensation to be a lakh of rupees, which shall be paid to the workman by the respondents within a period of eight weeks from the date of receipt of copy of this order, failing which it shall bear simple interest of 7.5% per annum. It is represented that the work which had been carried through PWD has stood transferred to Punjab Urban Development Authority (PUDA). The liability to address the claim of the workman shall be joint and several and either of the parties shall forthwith pay the compensation without indulging in bureaucratic prevarication, as is its wont, and later settle between themselves, how by the terms of transfer of the establishment, the right and liabilities stood transferred.
9. The award of the Labour Court is set aside and modified to provide for a compensation as referred to above and the writ petitions are disposed of in the above terms. No costs.