FERTILISERS AND CHEMICALS TRAVANCORE LTD. COCHIN DIVISION, AMBALAMEDU v. FACT (CD) WORKERS' CONGRESS (INTUC) & Ors.

C.T.RAVIKUMAR, J.-----------------------------W.P.(C)No.36492 of 2004-----------------------------Dated 14th December, 2012JUDGMENT Fertilizers and Chemicals Travancore Limited, Cochin Division,Ambalamedu, the management filed this writ petition challenging Ext.P1award passed by the Labour Court, Ernakulam in I.D.No.81/1995. As perExt.P1 award, the Labour Court directed the petitioner to reinstate theworkman without backwages, but with continuity in service.2. The workman Shri. V.Ayyan, commenced his career underthe service of the petitioner as Loading Helper on 30.5.1977. Admittedly,he obtained the said employment based on eviction packages. Thepetitioner contends that, ever since, his entry in service, he was irregularin attending the duties. The petitioner remained absent from 22.8.1987,continuously without permission and thereupon invoking the proceduresprescribed under Ext.P7 (Ext.M4 in I.D No.81/95), the Head of theDepartment issued Ext.M1 notice. It is the case of the petitioner thatdespite the receipt of Ext.M1, the workman did not turn up for duty.Thereupon, Ext.M2 notice was issued. Even then the workman did notreport for duty. Thereafter, Ext.M3 dated 27.10.1987 was passed. In the WP(C).No.36492/20042said circumstances, his name was removed from the rolls of thecompany. That was communicated to the workman. On receipt ofExt.M3 whereby he was removed from the rolls of the company witheffect from 16.10.1987, he approached his union and the union took upthe matter before the District Labour Officer. Admittedly, the conciliationproceedings failed and ultimately after complying with the procedures,the State Government as per Government Order (R.T. No.1522/95/LBR,dated 28.6.1995), referred the dispute. The dispute referred reads asfollows:-“Whether the removal of Shri. V.Ayyan,casual labourer from the rolls of the company isjustifiable or not? If not, the relief which he isentitled to?” In the claim statement, the union produced the reference order and itwas contended that the workman Shri.V.Ayyan was given appointmentas loading helper in the company on 30.5.1977, when his land andbuilding were acquired for the Cochin Division of FACT Ltd. During 1987,he became sick and was unable to attend duty and when he approachedthe petitioner to rejoin duty with the relevant ESI certificates, themanagement terminated his service with effect from 15.10.1987, on the WP(C).No.36492/20043ground of his continued absence from duty. It has been specificallycontended that workers with more days of absenteeism, both in themanagerial and non-managerial cadre and who were terminated twicewere taken back and are still continuing in the service of the company.Based on such contentions, the union sought for reinstatement of theworkman, with back wages and continuity in service. The managementfiled a written statement, raising the following contentions:-Though, the workman was removed from the rolls of thecompany in 1987, the reference was made only in 1995. Being a highlybelated reference, the reference itself is not maintainable. The workerwas continuously absent from 22.8.1987. Exts.M1 and M2 notices wereissued in the said circumstances. Despite the receipt of Exts.M1 and M2notices, the workman failed to report for duty. According to thepetitioner/management, it was in the said circumstances, his name wasremoved from the rolls of the company as per Ext.P2 dated 27.10.1987with effect from 16.10.1987. It is further contended that Ext.M3 is legaland sustainable, as it was issued strictly adhering to the provisions in thestanding orders, as is evident from Ext.M4, viz; Ext.P7 in theseproceedings. The union filed a rejoinder, refuting the contentions raisedin the written statement and reiterating the claims. WP(C).No.36492/200443. On the side of the management/petitioner MW1 (Shri. P.V.Unnikrishna Pillai, Asst. Manager) was examined and Exts. M1 to M20were marked. On the side of the union, the worker was examined asWW1 and one Mr. Gopi was examined as WW2. Exts. W1 to W4 weremarked on the side of the union. Based on the rival contentions, LabourCourt framed the following points for consideration:-“1. Whether the removal of Shri. V.Ayyan, the workmaninvolved in the present case, from the rolls of thecompany is justifiable?.2. The relief, if any, due to the worker.” 4. In the Labour Court the fact that the workmanSri. V.Ayyan was a permanent employee, was not disputed. As noticedhereinbefore, the main objection of the petitioner/management was thatthe reference itself was highly belated. That question was considered bythe Labour Court and found that no laches or lapses could be attributedagainst the union or workman. The copy of the complaint preferredbefore the D.L.O which was attached along with the reference orderwould reveal that the union filed the complaint before the District LabourOfficer on 7.7.1989. Going by Ext.M3, dated 27.10.1987, the workman WP(C).No.36492/20045was removed from the rolls of the company with effect from 16.10.1987.The specific case of the union before the Labour Court was that, Exts.M1and M2 were not received by the workman. The Labour Court took noteof the fact that, though the conciliation proceedings were initiated in1989, the delay in referring the matter occurred from the part of theGovernment. Taking into account all those facts, the Labour Court foundthat the contention of the petitioner/management that the reference washighly belated could not be sustained. 5. The case of the writ petitioner/management was that thename of the workman was removed from the rolls of the Company as perExt.M3 dated 27.10.1987 by invoking clause 12(E) of the CertifiedStanding Orders of the Company. Evidently, his name was so removedwithout following the procedures envisaged under the Industrial DisputesAct. Evidently, the Labour Court took note of the fact that the StandingOrders provide for initiation of disciplinary proceedings against personswho are remaining unauthorizedly absent for long periods. True that,the case of the petitioner was that the Standing Orders also provide fortreating such persons who are remaining unauthorizedly absent forlonger periods as voluntarily abandoning their service by virtue of the WP(C).No.36492/20046provisions under Ext.M4. Ext.P1 award would reveal that taking note ofthe said contention and also the provisions under the Standing Ordersthe Labour Court considered the question as to whether Ext.M3 wasissued strictly adhering to the procedures contemplated under Ext.M4.The petitioner management contended that it was in terms of theprovisions under the Standing Orders that Exts.M1 and M2 notices wereissued. MO1 notice was issued by the Head of the Department and onaccount of the failure on the part of the workman to report for dutyExt.M2 notice dated 6.10.1987 was issued by the PersonnelDepartment. The first respondent herein, the union, refuted the saidclaim and contended that Exts.M1 and M2 notices were not actuallyreceived by the workman and further that on receipt of Ext.M3 notice theoriginal of Ext.W3 was sent on 19.11.1987. According to the firstrespondent herein, the workman had also produced the original ofExt.W1 medical certificate dated 2.12.1985 and the original of Ext.W2document issued by the ESI Department recommending for leave.Ext.M4 is, in fact, a copy of the Circular bearing No.GM/P/IC-412/85dated 20.11.1985 prescribing the procedures to be followed in cases oflong absenteeism of employees. It is to be noted that the very case ofthe petitioner herein is that Exts.M1 and M2 were issued in terms of the WP(C).No.36492/20047procedures prescribed under Ext.M4. The Labour Court found that inspite of the specific denial on the part of the union that Exts.M1 and M2were not received by the workman the management had not chosen toproduce the acknowledgment cards evidencing the receipt of Exts.M1and M2 by the workman. In terms of the provisions under Ext.M4 suchnotices contemplated under Ext.M4 are to be registered in the name ofthe concerned workman with acknowledgment due. If that be so, inorder to hold that Exts.M1 and M2 are the notices sent in terms of theprovisions under Ext.M4 they must have been sent by registered postwith acknowledgment due. Had Exts.M1 and M2 been registered in thename of the workman viz., V.Ayyan, with acknowledgment due,definitely the acknowledgment cards received could have been produced.Taking note of the admitted failure for the production of theacknowledgment cards showing the serving of Exts.M1 and M2 notices onthe concerned workman by registered post, I have no hesitation to holdthat the Labour Court has rightly drawn an adverse inference. In fact, itis in tune with the provisions under the General Clauses Act. Therefore,the finding of the Labour Court that the management failed to issuenotices in compliance with the provisions under Ext.M4 even by resortingto the procedures contemplated under ExtM4 can only be upheld. Going WP(C).No.36492/20048by the Certified Standing Orders remaining unauthorizedly absent formore than a particular period is absenteeism. The Standing Orders alsoprovide for initiation of disciplinary proceedings against the workman forcommission of misconduct or for an action which would fall under thedefinition of misconduct. Evidently, in this case, no disciplinaryproceedings were initiated against the workman. As noticedhereinbefore, the finding of the Labour Labour Court is that the petitionerhad failed to issue proper notices in terms of Ext.M4 which prescribed theprocedures to be followed in cases of long absenteeism. Even if, owingto long absenteeism a worker can be held as remained unauthorizedlyabsent and thereby abandoned his service it will not permit the employerto do away with the procedures to be followed mandatorily. In otherwords, the prescribed procedures under Ext.M4 had to be followed insuch circumstances, as well. Though the scope of opportunity providedunder Ext.M4 is very limited the said limited opportunity was also notactually afforded to the workman. Evidently, the first respondent hereinrelied on the decisions in D.K. Yadav v. J.N.A. Industries Ltd. (1993II JLJ 696), Scooter India Limited v. M.Mohammed Yaqub andanother (2001 I LLJ 7) and Lakshmi Precision screws Ltd. v. RamBahagat (2002 III LLJ 516) to canvass the position that Certified WP(C).No.36492/20049Standing Orders though possess the statutory force, the provisions wouldbecome unsustainable in case the provisions thereunder are not inconformity with the principles of natural justice. In other words, anyprovisions which failed to recognize the principles of natural justicecannot be allowed to stand. On the other hand, relying on the decisionin National Engineering Industries Ltd., Jaipur v. Hanuman (1967II LLJ 883) the petitioner contended that undue reliance on theprinciples of natural justice would lead to miscarriage of justice. The saiddecision was relied on to canvass the position that the said decisionrecognized only the principle that no man shall be condemned, eithercivilly or criminally, without being afforded an opportunity of being heardin answer to the charge made against him. I am afraid, the said decisionwould not give any support to the position canvassed by the petitioner inthis case. Going by the said decision, evidently, no one can be punishedunheard. As noticed earlier, even the very limited opportunities providedin Ext.M4 have not been extended to the workman in this case, inasmuchas Exts.M1 and M2 were not actually served on the workman in themanner prescribed in Ext.M4. On scanning the evidence, the LabourCourt found that the petitioner had miserably failed to establish that theyfollowed the procedures prescribed under Ext.M4 and therefore the WP(C).No.36492/200410contention that the workman had abandoned the service by notresponding to Exts.M1 and M2 was also repelled. When once it is foundthat the procedures contemplated under Ext.M4 or in the StandingOrders in cases of long absenteeism empowering the management tohold such absentees as have been voluntarily abandoned their service,were not followed the order holding the concerned workman as a personwho abandoned the service cannot be permitted to stand. That exactlywas done by the Labour Court as per Ext.P1. Based on the evidence onrecord the Labour Court found that the management had miserably failedto establish that before issuing Ext.M3 whereby the name of theworkman was removed from the rolls of the Company even Exts.M1 andM2 notices were not served by registered post with acknowledgment dueas contemplated under Ext.M4 and therefore, the procedures followed bythe management that culminated in Ext.M3 can only be illegal and thefinding of the Labour Court in that regard therefore calls for nointerference. It is based on such finding that the Labour Court held thatremoval of the workman from the rolls of the Company could only betreated as an illegal retrenchment. No doubt that the normal relief thatcould be granted in case of an illegal retrenchment is reinstatement withbackwages. But, there is no inviolable position that whenever an order WP(C).No.36492/200411of reinstatement is ordered, it shall be followed by a direction forpayment of backwages. In appropriate cases backwages can be denied.A scanning of Ext.P1 would reveal that sufficient and sustainable reasonshave been assigned by the Labour Court for denying the relief ofbackwages. As a matter of fact, the denial of backwages has not beenchallenged by the workman. Having held the removal of the workmanfrom the rolls of the company as one amounting to illegal retrenchmentas per Ext.P1 the Labour Court directed the petitioner herein to reinstatethe workman without backwages but with continuity in service. Theaward was ordered to be taken into effect within one month after itspronouncement in open court. The order was pronounced in the opencourt on 16.3.2004. Therefore, on 17.4.2004 Ext.P1 had taken itseffect. In the said circumstances, I find no reason whatsoever tointerfere with Ext.P1 award.6. As per Ext.P1 award the order was to take its effect afterone month from the date of its pronouncement in open court. That orderwas pronounced in open court on 16.3.2004 and therefore, it took itseffect from 17.4.2004. While admitting this writ petition, this Courtgranted interim stay of operation of Ext.P1 on 16.12.2004 and the said WP(C).No.36492/200412order is still in force. Earlier, the workman filed I.A.No.3312 of 2005,application under Section 17B of the Industrial Disputes Act. A counteraffidavit has been filed by the petitioner herein in the said I.A. resistingthe claim of the workman for payment of the wages under Section 17B ofthe Industrial Disputes Act. An order was passed on I.A.No.3312 of2005 on 27.1.2006. Admittedly, the order directing payment to theconcerned workman in terms of the provisions under Section 17B hasbeen complied with and the concerned workman was paid wages underSection 17B till he attained the age of superannuation. The workmanconcerned attained the age of superannuation on 31.1.2009. In the saidcircumstances, there can be no doubt that the concerned workman isentitled to wages at the rate to which he is entitled to at the relevantpoint of time less the amount already paid in compliance with the ordersunder Section 17B.With the said observations this writ petition is dismissed. Sd/- C.T.RAVIKUMAR JudgeTKS/ss