Cross Objection No. 20-C of 1989 v. National Fertilizers Limited, Bathinda

The appellant was confirmed w.e.f. 14.3.1979 after completion of his probation period. The appellant had proceeded on leave for one month till 30.04.1981. As per the averment, he was compelled to apply for extension of leave but his name was struck off w.e.f. 27.05.1981. He challenged the order on the ground that the same was illegal and not a speaking order and also on the ground that the authority was not competent to pass the order. As per the appellant, the authorities were under obligation to inform him if the leave asked for by him was refused or granted and till that happened, he could not be taken to have abandoned the services. The counsel would further submit that this action against the appellant could not have been taken without service of show cause notice and the manner in which he was treated to have abandoned the job would lead to violation of his fundamental rights. Regular Second Appeal No. 1400 of 1989 3 Having made several requests to the authorities and when nothing was done, the appellant filed the suit seeking declaration that the order dated 27.05.1981 terminating his services was illegal, void and that he should be in continuous service. In the written statement, preliminary objection was raised in regard to maintainability of the suit. It is further pleaded that the civil Court had no jurisdiction to entertain the suit, which was bad for mis-joinder and non-joinder of necessary parties. On merits, it was submitted that the appellant had proceeded on leave on 24.3.1981 to

30.4.1981. Thereafter, he absented himself and his name was struck off from the rolls on 27.05.1981 in accordance with the standing orders of the company. It is stated that the appellant left India to Saudi Arbia, where he got employment. Accordingly, it was stated that the suit filed by him is liable to be dismissed. Trial proceeded on the following issues:-

1. Whether the impugned order is illegal, arbitrary, injust without competence, against principles of natural justice as pleaded in para No. 5 of the plaint? OPP.

2. Whether the plaintiff is estopped to institute the suit as pleaded in para No. 6 of the preliminary objections taken in the written statement? OPD.

3. Whether the suit is not maintainable as pleaded in paras No. 1, 5 of the preliminary objections taken up in the written statement?OPD.

4. Whether the suit is bad for non-joinder of necessary parties? OPD

5. Whether the suit is bad for mis-joinder of parties?OPD. Regular Second Appeal No. 1400 of 1989 4

6. Whether the plaintiff is entitled to the declaration sought for? OPP.

7. Relief. The trial Court dismissed the suit against which the appellant filed an appeal. The First Appellant Court, however, allowed him the partial relief by directing that the appellant would be entitled to pay for a period of 3 months as he was not served with any notice has having abandoned the services. The appellant accordingly has filed this Regular Second Appeal. The respondent-National Fertilizers has also filed Cross Objection in the appeal to challenge that part of the order whereby directions had been issued by the First Appellate Court to pay him for a period of 3 months in lieu to notice issued. Concededly, the service conditions of the appellant were governed by NFL, Bathinda standing orders. These orders were duly certified by the Regional Labour Commissioner (Central) Government of India, Ministry of Labour under Sub Section 3 of Section 5 of the Industrial Employment (Standing order) Act, 1946. Clause 13.12 of the standing orders reads as under:- “13.12:- If a workman remains absent without leave, for more than 8 days or for more than 8 days beyond the period of leave originally granted or subsequently extended, he shall be deemed to have voluntarily abandoned his employment and his services shall be treated as having been terminated automatically and his name shall be struck off of the rolls the Company without any reference to him unless. Regular Second Appeal No. 1400 of 1989 5 a) he returns within 8 days of the expiry of leave or extended leave or commencement of his absence as the case may be; and b) gives explanation to the satisfaction of the management of his inability to be present, as required. NOTE i) If a workman returns within 8 days from the date of the expiry of the leave or from the date of commencement of his absence, but fails to give satisfactory explanation for such unauthorised absence, he will be deemed to have voluntarily abandoned his employment with effect from the date on which he was required to resume his duties. ii) If a workman's application for leave is not sanctioned, as provided for in these Standing orders, he will be treated as absent without leave for the purpose of this order.” It is above clause of the standing orders, which has been invoked. This clause clearly provides if a workman remains absent without leave, for more than 8 days or for more than 8 days beyond the period of leave originally granted or subsequently extended, he shall deemed to have voluntarily abandoned his employment and his services shall have been terminated automatically. The respondent had taken that the appellant had abandoned this job. The action taken by the respondent was in terms of standing orders. The submission that the action amounted to termination of the appellant cannot be accepted. If the respondents were to terminate the service, they were to act not only in terms of condition of the employment as Regular Second Appeal No. 1400 of 1989 6 noted above but also in terms of the standing orders. Since it is a case of abandonment of service for which there was provision available and which was invoked, apparently, no fault can be found in the action taken by the respondent. Accordingly, the view taken by the courts below is legally sound. The question of law that it would amount to termination in fact does not arise in view of the facts and circumstances and the legal position emerging in this case. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. The cross objection shall also be dismissed, in view of the fact that the respondent otherwise has handed over the payment in lieu of notice not having been issued as submitted by the appellant. There shall be no order as to costs. May 10, 2010 ( RANJIT SINGH ) JUDGE