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PETITIONER: M/S.  SCOOTERS INDIA LTD.

       Vs.

RESPONDENT: M.  MOHAMMAD YAQUB & ANR.

DATE OF JUDGMENT:       21/11/2000

BENCH: S.N.Variava, S.R.Babu

JUDGMENT:

S.  N.  VARIAVA, J. L.....I.........T.......T.......T.......T.......T.......T..J

     This  Appeal is against an Order dated 13th May,  1998 by  which the writ petition filed by the Appellant has  been dismissed.   Briefly  stated the facts are as follows:   The 1st  Respondent  was appointed as unskilled  workman  w.e.f. 9th  September, 1974 and was then promoted to the post of  a semi-skilled  worker w.e.f.  7th June, 1975.  On 1st August, 1976  the Respondent’s name was removed from the roll of the Company  under  Standing  Order 9.3.12.  The  said  Standing Order  reads  as follows :  "9.3.12 Any workman who  remains absent  from  duty without leave in excess of the period  of leave  originally  sanctioned or subsequently  extended  for more  than  10 consecutive days, he shall be deemed to  have left  the services of the Company of his own accord, without notice, thereby terminating his contract of service with the Company  and  his name will, accordingly, be struck off  the rolls."

     The Respondent raised an industrial dispute, which was referred  for adjudication to the Labour Court, Lucknow.  By an  Award dated 20th July, 1984, the Labour Court held  that there  was retrenchment.  The Labour Court held that as  the provisions  of  law,  regarding retrenchment, had  not  been followed  the  termination  was illegal.  The  Labour  Court directed  reinstatement with continuity of service and  full back   wages.   The  Appellant   filed  the  Writ   Petition challenging  the  Award.   The  Writ  Petition  came  to  be dismissed  by the impugned order dated 13th May, 1998.   Mr. Swarup  submitted  that  there   was  no  retrenchment.   He submitted  that the Respondent had been suspended from  28th June,  1976 to 7th July, 1976 and was to join duty after 7th July,  1976.  He submitted that the Respondent did not  join duty.   He  submitted  that the  Respondent  was  personally advised  by  the Chief Personnel Officer of the  Company  to join  his  duty on 23rd July, 1976, failing which  his  name would  be removed from the roll.  Mr.  Swarup submitted that the  Chief  Personnel Officer of the Company wrote a  letter dated  24th July, 1976, calling upon the Respondent to  join duties  latest  by 30th July, 1976, failing which  his  name would  be  removed  from  the  rolls  of  the  company.   He submitted that the Respondent still failed to join duty.  He submitted  that  under these circumstances the Appellant  is entitled  to remove the name of the Respondent from the roll of the company under the above mentioned Standing Order.  He submitted that such removal does not amount to retrenchment.

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He  relied  upon the judgment in the case of Scooters  India and  Ors.   vs.   Vijai E.V.  Eldred reported  in  1998  (6) S.C.C.  549, wherein in respect of Standing Order 9.3.12, it has  been  observed as follows :  "It is also  extraordinary for  the  High  Court  to have held  clause  9.3.12  of  the standing  orders  as  invalid.    Learned  counsel  for  the respondent  rightly made no attempt to support this part  of the High Court’s order."

     On  the other hand Mr.  Chinnasamy has relied upon the case  of  Uptron  India  Ltd.  vs.   Shammi  Bhan  and  Anr. reported  in 1998 (6) S.C.C.  538.  In this case it was held that  such a standing order conferred a discretion upon  the management  to terminate or not to terminate the services of an  employee who overstays the leave.  It was held that  the discretion  had to be based on an objective consideration of all  circumstances  and material which may be  available  on record.   It  was held that questions which would  naturally arise  are  what  circumstances compelled  the  employee  to proceed  on  leave, why he overstayed leave, was  there  any just  and reasonable cause for overstaying leave, whether he gave  any  further  application   for  extension  of  leave; whether  any medical certificate was sent if he had, in  the meantime  fallen ill.  It was held that such questions could only  be answered by the management provided it was inherent in  the provision that the employee against whom action  was proposed  to  be taken on the basis of such a provision  was given  an  opportunity  of  hearing.    It  was  held   that principles  of  natural justice had to be read into  such  a clause  and  the  principles of natural justice  had  to  be complied  with.   It  was held that the employee had  to  be informed  of the grounds for which action was proposed to be taken  against  him for overstaying the leave.  It was  held that   a  Standing  Order   which  provided  for   automatic termination  of service of a permanent employee would be bad if  it did not purport to provide an opportunity of  hearing to  the employee whose services are treated to have come  to an  end  automatically.   It  must  be  mentioned  that  the authority  in Scooters India’s case (supra) was cited before this  Court.  In respect of that case it was held as follows :   "22.   Learned  counsel for the  petitioner  has  placed strong  reliance  upon a decision of this Court in  Scooters India  v.   Vijay  E.V.  Eldred, 1996 (6)  S.C.C.   549,  in support of his contention that any stipulation for automatic termination  of  services made in the Standing Orders  could not have been declared to be invalid.  We have been referred to  a  stray  sentence  in that judgment, which  is  to  the following effect :

     "It  is also extraordinary for the High Court to  have held clause 9.3.12 of the Standing Orders as invalid."

     This  sentence  in  the  judgment cannot  be  read  in isolation  and  we  must refer to the  subsequent  sentences which run as under :

     "Learned  counsel  for the respondent rightly made  no attempt  to support this part of the High Court’s order.  In view  of the fact that we are setting aside the High Court’s judgment, we need not deal with this aspect in detail."

     23.  In view of this observation, the question whether the  stipulation  for automatic termination of services  for overstaying  the leave would be legally bad or not, was  not decided  by  this Court in the judgment relied upon  by  Mr.

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Manoj  Swarup.   In that judgment the grounds on  which  the interference  was made were different.  The judgment of  the High  Court  was set aside on the ground that it  could  not decide  the disputed question of fact in a writ petition and the matter should have been better left to be decided by the Industrial Tribunal.  Further, the High Court was approached after  more than six years of the date on which the cause of action had arisen without there being any cogent explanation for  the  delay.   Mr.  Manoj Swarup contended that  it  was conceded  by the counsel appearing on behalf of the employee that   the  provision  in   the  Standing  Orders  regarding automatic  termination  of  services is not bad.   This  was endorsed by this Court by observing that :

     "Learned  counsel  for the respondent rightly made  no attempt to support this part of the High Court’s order."

     This  again  cannot  be treated to be a  finding  that provision  for  automatic  termination of  services  can  be validly  made  in  the   Certified  Standing  Orders.   Even otherwise,  a wrong concession on a question of law, made by a  counsel,  is not binding on his client.  Such  concession cannot  constitute  a just ground for a  binding  precedent. The  reliance placed by Mr.  Manoj Swarup on this  judgment, therefore, is wholly out of place."

     We  are in complete agreement with the ratio laid down in  this case as well as the observations made by this Court in respect of the stray observation in Scooters India’s case (supra).  Therefore, it is clear that there could not be any automatic  termination  of  the Respondent on the  basis  of Standing Order 9.3.12.  Principles of natural justice had to be complied with.  The question which then arises is whether the  principles  of  natural justice were followed  in  this case.   As  has  been set out herein above Mr.   Swarup  had submitted  that the workman had been given an opportunity to join  the  duty  and that he did not join duty  even  though repeatedly  called  upon  to do so.  It  is  contended  that principles  of  natural justice have been complied  with  in this  case.   However,  the  material  on  record  indicates otherwise.   The  Labour  Court in its Award  sets  out  and accepts  the Respondent’s case that he had not been  allowed to  join duty.  The Respondent has given evidence that  even though  he  personally  met Chief Personnel Officer  he  was still  not  allowed to enter the premises.  The evidence  is that  in  spite  of slip Ext.  W.2, he  was  prevented  from joining  duty when he attempted to join duty.  The slip Ext. W.2  had  been  signed  by the  Security  Inspector  of  the Appellant.  This showed that the Respondent had reported for work.   As  against this evidence the Appellant has not  led any  evidence to show that the workman had not reported  for duty.   Even though the slip Ex.  W.2 had been proved by the workman,  the  Security Inspector, one Mr.  Shukla, was  not examined  by  the  Appellant.  Further the evidence  of  the Senior  Time  Keeper of the Appellant established  that  the workman had worked for more than 240 days within a period of 12  calender  months  immediately   preceding  the  date  of termination  of  service.   This  was   proved  by  a  joint inspection  report, which was marked as Ext.  45/A.  It  was on  the  basis of this material and this evidence  that  the Labour  Court  came  to  the   conclusion  that  there   was retrenchment  without  following the provisions of law.   As the  workman  was not allowed to join duty,  Standing  Order 9.3.12  could  not  have  been   used  for  terminating  his services.   In  this  view of the matter, in our  view,  the

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decisions  of  the  Labour Court as well as High  Court  are correct  and  require  no  interference.   Accordingly,  the Appeal  stands dismissed.  There will, however, be no  order as to costs.