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CASE NO.: Appeal (civil)  1168 of 2002

PETITIONER: State of Punjab

RESPONDENT: Jagir Singh  

DATE OF JUDGMENT: 27/09/2004

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

W I T H  

CIVIL APPEAL NO.1167 OF 2002

S.B. SINHA, J :

       These two appeals arising out of  a common judgment and order dated  7.12.2000 passed  by a Division Bench of the Punjab and Haryana in Civil Writ  Petition No.8212 of  1999 involving similar questions of law and fact were taken  up for hearing together and are being disposed of by this common judgment.

       Jagir Singh, the Appellantg in Civil Appeal No.1167 of 20002 will  be   hereinafter referred to as ’the workman’; whereas the State of Punjab, Appellant  in Civil Appeal No.1168 of 2002, will be hereinafter referred to as  ’the State’.

FACTS :         The workman herein joined the service in the Punjab Roadways, Taran  Taran, in the year 1965 as a driver.  It is not in dispute that he absented himself  from duty from 2.5.1979 to 3.8.1979.  The workman did not apply for any grant  of  leave.  He was asked to report for duty by a registered letter dated 22.6.1979  but despite the same  he did not  comply with the said request.  As regard his  absence from duty, a notice was published in the newspapers but despite the same  he did not join his duties within the time specified therein.  The State, therefore,  on the ground  his being absent from duty, terminated his services with effect  from 3.8.1979.  Questioning the legality of the said order, a purported demand  was raised by the workman to reinstate him in service by a letter dated 5.3.1981.   An industrial dispute was raised in relation whereto, conciliation proceedings  were held.  Consequent upon failure of the parties to arrive at an amicable  settlement therein, the  dispute was referred to the Labour Court by the State  purported to be in exercise of its power under Section 10(1) (c) of the Industrial  Disputes Act, 1947 (hereinafter referred to as ’the Act)  by a notification dated  25.8.1993 on the following :

"Whether termination of the services of the workman is  justified and in order ?  If not, to what relief/exact  amount of compensation is he entitled ?"

       The said reference was answered in favour of the workman and against the  State by an award dated 2.5.1997.  In terms of the award, the State was directed  to reinstate the workman with continuity in service and full back-wages stating :

       "In view of  my findings on the aforesaid issues  the workman is entitled to be reinstated with continuity in  service and since the workman has stated that he had  remained unemployed throughout, and there being no  evidence contradicting  above statement by management

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in this regard, workman shall be entitled to full back- wages from the date of demand notice and all allied  benefits.  The reference is answered as such.  No order as  to costs.  The workman is directed  to report for duty  within 30 days of the   publication of the award."               

       The State thereafter filed a writ petition questioning the said award before  the Punjab  and Haryana High Court on 2.6.1999.  The High Court by reason of  its impugned judgment dated 7.12.2000 allowed the writ petition in part to the  limited extent that instead and place of full back-wages, the workman was held to  be entitled to 60% of the back-wages, while upholding the direction for  reinstatement of the workman, stating :

       "So far as back wages  are concerned , the Labour  Court awarded full back wages from the date of demand  notice.  However, it can be seen that the demand notice  was issued on 5.3.1981.  Reference was made on  25.8.1993 and the impugned order is dated 2.5.1997.  In  view of this position, we restrict  back  wages to 60%  from the date of demand notice.  The writ petition  deserves to be  allowed to this extent.   In the light of  above discussion, this writ petition is partly allowed.  The  back wages are restricted to 60% only from the date of  demand notice.  Rest of the prayer made in the writ  petition is declined."  

       Aggrieved, both the State and the workman have filed these appeals upon  obtaining special leave.  

Mr. Kuldip Singh, learned counsel appearing on behalf of the State, would  submit that keeping in view the fact that the workman failed and/or neglected to  join his duties despite receipt of notice and  publication as regard  his absence  from duty in the newspapers, he was not entitled to any relief.  In such a  situation, the learned counsel would contend that the provisions of the Punjab  Civil Services (Punishment and Appeals) Rules, 1970 would have no application  inasmuch as  no leave having been granted, the question of initiation of a  disciplinary proceeding would not arise.

Mr. Manoj Swarup, learned counsel appearing on behalf of the workman,  per contra, would submit that the conditions of services of the workman being  governed by the statutory rules, being the Punjab Civil Services (Punishment and  Appeals) Rules, 1970  and the Punjab Civil Services Rules, 1953, the impugned  order of termination has rightly been set aside by the Labour Court in view of the  fact that no disciplinary proceeding was initiated against the workman as is  mandatorily required under Rules 5 and 8 of 1970 Rules and Rule 3.25 of 1953  Rules.  It was pointed out that the State’s plea of  abandonment  of service on the  part of the workman was also found to be incorrect.   According to the learned  counsel, as no material was brought on records  by the State to show that the  workman had availed of any alternative employment, the workman was entitled  to full back-wages from the date of issuance of the demand.  It was argued that  only because more than twelve years have elapsed from the date of the demand  and the date of reference,  it  cannot be said that  delay was attributable to the  workman  as the delay, if any,  in making the reference was on the part of the  State.

Before adverting to the questions raised in these appeals, we may record  that pursuant to the award dated 2.5.1997, the workman was reinstated in service  with effect from 24.8.1999 and he reached the age of superannuation in March  2004.

The short question, therefore, which arises for our consideration in these  appeals is as to whether the workman is entitled to  back-wages.

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It is not in dispute that the workman did not perform any duty since  2.5.1979.  The Labour Court made its award only on the ground that before  issuing the order of termination dated 3.8.1979, no disciplinary proceeding was  held in terms of the Punjab Civil Services (Punishment and Appeals) Rules and  furthermore the mandatory requirements of Section 25F of the Industrial Disputes  Act, 1947 were not complied with.  The findings of the Labour Court are  inconsistent with and self-contradictory.  If the services of the workman were  terminated for misconduct, the question of payment of any retrenchment  compensation or service of  any statutory notice  would not arise.  The question  of compliance of the provisions of Section 25F of the Industrial Disputes Act  would arise, if the services of the concerned workman were terminated  on a  ground  other than misconduct.

The Labour Court furthermore failed to consider the conduct of the  workman in not joining to his duties despite having been asked to do so by a  registered letter as well as publication of a notice in the newspapers.  While  directing grant of  back-wages, the Labour Court was required to consider the  totality of the circumstance.  The conduct of the workman had also an important  role to play.  The services of the workman were terminated on 3.8.1979.  He  merely asked for his reinstatement in service on or about 5.3.1981.  There is  nothing on record to show as to when the industrial dispute was raised.  Even if   he had raised an industrial dispute in 1981, it does not stand to any reason as to  why he kept mum till the reference was made in the year 1993.

We may notice that in Uptron India Ltd. vs. Shammi Bhan and Another  [(1998) 6 SCC 538], the question  as to whether a statute or a Sanding Oder  having the force of law containing the provision of automatic termination on the  ground of overstay of the leave for a certain number of days is utra vires or not  came up consideration before this Court wherein it was held that when a  discretion is conferred upon the employer to terminate or not to terminate the  services of the concerned employees, principles of natural justice are ordinarily  required to be complied with.  However, as indicated hereinbefore, the conduct of  the workman would play an important role  as regard direction upon the  employer to pay back-wages.  In this case,  no leave was either sought for or  granted.  No  material was brought on  record except the oral statement of the  workman that an application for leave had been filed.  It is not in dispute that the  State issued a registered letter directing the workman to join his duty.  As he did  not do so, notice of  his absence was published in the newspaper.  These facts  would appear from the letter of termination itself which has been annexed with  the Special Leave Petition filed by the workman as also his Counter  Affidavit to  the Special Leave Petition filed by the State.

Mr. Manoj Swarup, learned counsel appearing on behalf of the workman,  placed strong reliance on Scooters India Ltd. vs. M. Mohammad Yaqub and  Another [(2001) 1 SCC 61].  Therein, the question which arose for consideration  was as to whether giving of such notices would  amount to sufficient compliance  of principles of natural justice or not having regard to the fact situation obtaining  therein.  In paragraph 12 of the judgment it was categorically held that the  records therein indicated that no opportunity had been granted to the workman to  join his duty.   

This Court in different decisions  applied the principles of natural justice  having regard to the fact situation obtaining therein.

Indisputably, the principles of natural justice may have to be complied  with having regard to the conditions of service governed by the rules framed in  terms of proviso appended to Article 309 of the Constitution of India.  But the  said principle cannot be put in a strait-jacket formula.  It cannot be applied in a  vacuum without reference to the relevant fact situation.  [See Punjab and Sind  Bank and Others Vs. Sakattar Singh, [(2001) 1 SCC 214] and Dr. Gurjeewan  Garewal (Mrs.) Vs. Dr. Sumitra Dash (Mrs.) and Others, [(2004) 5 SCC 263]]

       In Dr. Gurjeewan Garewal (supra), this Court noticed:

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"Recently in another case of a very similar nature Anil  Bajaj (Dr.) vs. Postgraduate Institute of Medical  Education & Research [(2002) 2 SCC 240] this Court  held :

       "A person who gets an advantage, namely,  of a sanction to go abroad on service on the  condition that he will come back within two years  and if he does not come back, his lien will  automatically be regarded as being terminated, he  then cannot turn around and challenge the said  condition on the basis of which sanction to go  abroad was granted\005.but where the facts are not  in dispute the inquiry would be an empty  formality.  In any case the principle of estoppel  would clearly apply and the High Court was right  in dismissing the writ petition filed by the  appellant wherein he had challenged his  termination."

       Similarly, in the case in hand the 1st respondent  was originally granted an ex-India leave for two years on  the express condition that she will be deemed to have  vacated the post if she opts not to join after the leave  period.  But she preferred to remain in the greener  pastures for a pretty long time in spite of the repeated  reminders from PGIMER.  She employed the case before  the High Court as a dilatory tactic to continue with her  foreign assignment and evaded herself from joining  under some pretext or the other."                        

On the aforesaid findings, this Court vacated the stay of  holding the  departmental proceeding as against the Respondent No.1 therein.

In this case, as despite several opportunities the workman did not join his  duties at all, we are of the opinion that the Labour Court and the High Court  committed a manifest error in granting back-wages in his favour.

As noticed hereinbefore, the letter of termination issued to the workman  itself suggests that such an opportunity had been granted.  We are, therefore, of  the opinion that even if it is assumed that in the facts and circumstances of this  case, it was obligatory on the part of the State to comply with Rules 5 and 8 of  the  Punjab Civil Services (Punishment and Appeals) Rules,  the workman having  regard to the totality of the situation was not entitled to back-wages.  

We may place on record that keeping in view of the fact that the workman   had already been reinstated and has since retired, it was not considered expedient  to go into the question of correctness or otherwise of the award directing   reinstatement of the workman.

For the foregoing reasons, the appeal preferred by the State is allowed and  that of the workman is dismissed.  No costs.