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RSRTC versus JUDGE LABOUR COURT

High Court of Rajasthan

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RSRTC v JUDGE LABOUR COURT - CW Case No. 1757 of 1995 [2005] RD-RJ 1244 (1 August 2005)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

ORDER

Rajasthan State Road Judge, Labour Court,

Transport Corporation, v. Jodhpur & Anr.

Jaipur

S.B.CIVIL WRIT PETITION NO.1757/1995 under Articles 226 and 227 of the

Constitution of India. 1st August, 2005

Date of Order :

PRESENT

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. Sangeet Lodha, for the petitioner.

Mr. D.K.Parihar, for the respondent.

BY THE COURT :

The award dated 1.11.1994 passed by Labour

Court, Jodhpur in Labour Case No.71/89 is under challenge in present petition for writ.

The factual matrix giving rise to present petition is as follows:-

The appropriate government referred an industrial dispute for its adjudication to Labour

Court, Jodhpur in following terms:- ,

" ! " ! &

"

" ! ! " " 7 & ! . & 00 ( .) " 2-6-86 3 4 " 6 6 ?"

The respondent workman in pursuant to the reference made by appropriate government submitted a statement of claim before learned Labour Court stating therein that appointment was given to him as Conductor @ Rs.20/- per day with Rajasthan State Road Transport

Corporation on 18.2.1985 and thereafter w.e.f. 13.9.1985 the pay scale of Rs.490-840 was allowed to him. He proceeded on leave for a period of five days with sanction to leave head quarters on 27.5.1986 but while availing leave he felt ill, therefore, an application was submitted by him for extension of leave for next 15 days. The application for extension of leave was sent by registered post on 1.7.1986, however, the employer without giving an opportunity of hearing terminated him from service by an order dated 20.6.1986. The workman accordingly claimed reinstatement in service with all consequential benefits.

A written was filed on behalf of the employer, the present petitioner, stating therein that the workman while on probation stayed on sanctioned leave from 27.5.1986 to 31.5.1986 but thereafter from 2.6.1986 he remained wilful absent from services which adversely effected regular operation at the bus depot concerned, therefore, in view of provisions of Order 26(7) and 26(8) read with Order 34(o) of the Rajasthan

State Road Transport Workers and Workshop Employees

Standing Orders (hereafter referred to as "the

Standing Orders") the services of the workman stood terminated.

Learned Labour Court after adjudication of reference made to it by award impugned held that termination of workman was improper and illegal, therefore, declared him entitled to be reinstated in service with full back wages from the date of termination to the date of reinstatement.

While giving challenge to the award impugned it is contended by counsel for the petitioner

Rajasthan State Road Transport Corporation that the

Labour Court failed to appreciate provisions of Order 26(7) and 26(8) read with Order 34(o) of the Standing

Orders. It is stated by counsel for the petitioner that absence without leave for more than 10 days is a misconduct under order 34 of the Standing Orders and for such misconduct no regular inquiry is required to be conducted in view of clause (7) of Order 26 according to which if an employee remain absent beyond the period of original leave or extension if not granted, renders the absentee liable to lose his lien on his appointment unless he returns within eight days of the expiry of the leave. In the present case the workman remained absent from duties unauthorisedly from 2.6.1986 to 20.6.1986, therefore, he lost the lien from the post he was holding.

Heard counsel for the parties and scanned the award impugned.

The Labour Court declared termination of the workman illegal on the count that no inquiry at all was conducted by the employer before discontinuing the workman from service w.e.f. 20.6.1986. The Labour

Court also held the same a retrenchment effected in violation of the mandatory condition precedent for a valid retrenchment. The Labour Court also held that the provisions of Order 26(8) and 34(o) of the

Standing Orders could not be attracted in present controversy as the workman submitted illness certificate and also application for extension of leave. The contention of counsel for the petitioner is that in view of provisions of clause (7) of Order 26 of the Standing Orders the workman lost his lien as he failed to return on duties within a period of eight days from expiry of leave.

I do not find any merit in the contentions so raised. Order 34 of the Standing Orders provides various acts and omissions which are treated as misconduct. Absence without leave for more than 10 days is also prescribed as a misconduct.

Order 26 of the Standing Orders pertains to various type of leave available to an employee of the corporation and the consequence thereof. Clause (6) of

Order 26 provides that application for leave in continuation to or extension of leave already being availed of must in all circumstances as far as possible, be made well in time to ensure a reply granting or refusing such extension before the original leave expires.

Clause (7) of Order 26 of the Standing Orders provides that in event of absence beyond the period of original leave or extension if not granted shall render the absentee liable to lose his lien on his appointment unless he returns within eight days of the expiry of leave or unless explains to the satisfaction of the General Manager or a competent authority the reasons of his inability to return in time.

Clause (8) of Order 26 of the Standing Orders provides that in the case of absence of an employee for ten days or more without proper orders of General

Manager or a competent authority authorised in this behalf, such employee shall be liable to suspension under the orders in writing. In the event of his not giving satisfactory explanation or evidence to that effect his services may be terminated by the General

Manager or by a competent authority.

A reading of sub-clause (b) of clause (7) of

Order 26 and of clause (8) of Order 26 of the Standing

Orders makes it clear that the lose of lien under clause (7) of Order 26 is not automatic but is subject to an inquiry required to be made either by General

Manager or by a competent authority. This position is further fortified from reading of clause (o) or Order 34 of the Standing Orders which prescribe absence without leave for more than ten days as a misconduct.

No penalty as provided under Order 36 of the Standing

Orders can be imposed upon an employee of the petitioner corporation without adhering the procedure prescribed to do so under Order 35 of the Standing

Orders.

The interpretation put forth by counsel for the petitioner that the respondent workman lost his lien automatically in view of clause (7) of Order 26 of the Standing Orders, therefore, is nothing but erroneous reading of the Standing Orders. In view of it I do not find any error in the award impugned while holding that no reasonable opportunity was afforded to the workman while terminating him from service and the same makes the action taken illegal and improper.

I also do not find any merit in the contention that the workman was working on probation and during probation his service was not found satisfactory, therefore, he was discharged from service, as such there was no need to hold any inquiry. The petitioner came forward with a case before Labour Court that the respondent remained absent from service which is a misconduct and that absence culminated into termination from service. This fact proves with without any doubt that a misconduct formed foundation for termination of services, as such the same cannot be treated as a discharge simplicitor.

There is no need to make any comment with regard to the finding given by Labour Court that termination of the workman also amounts retrenchment effected in violation of the provisions of Section 25-

F of the Industrial Disputes Act, 1947 as a specific finding is recorded by the Labour Court that the act of the workman comes within the perview of misconduct and, therefore, a regular inquiry was required to be conducted before terminating him from service.

In view of discussion made above the writ petition is devoid of merit and, therefore, the same stands dismissed.

No order as to costs.

( GOVIND MATHUR ),J. kkm/ps.


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