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PETITIONER: THE MANAGEMENT OF M/S.  INDIAN IRON & STEEL CO.  LTD.

       Vs.

RESPONDENT: PRAHLAD SINGH

DATE OF JUDGMENT:       03/11/2000

BENCH: S.  Rajendra Babu, & Shivaraj V.  Patil.

JUDGMENT:

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Shivaraj V. Patil,J.

Leave granted.

In  this appeal the appellant is assailing the order made  on 29.5.1999  by  the learned single Judge of the High Court  in CWJC  No.   1458  of  1997(R) as well as  the  order  of  the Division Bench of the High Court confirming the same.

At  the  instance of sponsoring union a dispute was  referred for  adjudication  to  the   Central  Government   Industrial Tribunal,  No.   1,  Dhanbad  (for  short  ’Tribunal’).   The dispute  was  "whether  the management of M/s.   IISCO  Ltd., Chasnalla  Colliery,  P.O.   Chasnalla, Distt.   Dhanbad  was justified  in terminating the services of Shri Prahlad Singh, Magazine  Clerk  vide  their letter No.  28  (IV)/2008  dated 8.10.1974.   If not, to what relief the workman concerned  is entitled."

The Tribunal, after considering the material placed before it and  taking into consideration the submissions made, recorded findings  that  the respondent-workman lost his lien  on  the appointment  in  view  of  the orders 10(f) and  (h)  of  the Standing Orders having regard to the facts of the case either admitted or found established.  The Tribunal based on records also   took  note  of  the  fact   that  the  claim  of   the respondent-workman  in raising the dispute after a period  of about  13 years from the date of termination was too stale to grant  any relief.  In this view the Tribunal held that order of  termination  of services of the respondent was  justified and  he  was  not entitled to any relief.  It is  this  award which  was  assailed  by the respondent  before  the  learned single  Judge  of the High Court in the writ  petition.   The writ petition was allowed quashing the award of the Tribunal, directing  the  appellant  to  reinstate  the  respondent  in service  with full back wages from the date when the  dispute was  referred  by the appropriate Government to the  Tribunal for  adjudication.   The appellant unsuccessfully  challenged this  order  of the learned single Judge before the  Division Bench  of  the High Court.  In these circumstances  appellant has approached this Court.

Learned counsel for the appellant contended that the impugned orders  could  not be sustained at all;  the  learned  single Judge  was  not  right in quashing the award  passed  by  the

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Tribunal  without even stating as to how the findings of fact recorded  by  the  Tribunal were wrong;  the  learned  single Judge  did not also find that the findings of facts  recorded by  the  Tribunal  were   either  perverse  or  unreasonable. Similarly  the Division Bench of the High Court committed  an error   in  dismissing  the   appeal  without  examining  the questions raised in the appeal.

Learned  counsel  for  the respondent argued in  support  and justification of the impugned orders stating that even if the claim   had  become  stale  the   relief  could  be   moulded appropriately.   We  have carefully examined the  submissions made  by the learned counsel for the parties.  The respondent was  granted  leave from 1.7.1974 to 20.9.1974.  He  did  not resume  duty after expiry of the said period of leave.  After waiting  for more than two weeks the appellant issued  notice dated  8.10.1974  terminating the services of the  respondent with  effect from 21.9.1974.  On the basis of material placed on  record the Tribunal found that after receiving the letter dated 8.10.1974 terminating his services the respondent slept over  for  a period of about 13 years.  It is only in  April, 1987  the respondent wrote letters to the appellant that  too without  making any reference to his alleged illness.  Orders 10(f) and (h) of the Standing Orders read as follows:  -

"10(f) If a workman remains absent beyond the period of leave originally  granted subsequently extended, he shall lose lien on his appointment unless he:

(a) returns within ten days of expiry of his leave and

(b) explains to the satisfaction of the manager his inability to return on the expiry of his leave."

           xxx     xxx     xxx

"(h)  Notwithstanding  anything mentioned above, any  workmen who over-stays his sanctioned leave or remains absent without reasonable  cause will render himself liable for disciplinary action."

Referring  to these Standing Orders and applying them to  the admitted  facts  of the case the Tribunal in paragraph 25  of the order has held thus:  -

"25.   There is nothing on the record to show that after  the year  1974, when the workman was informed of the loss of lien on  his appointment through Ext.-4 anything was done in  this regard  by  or on behalf of the workman till  October,  1986. From  Ext.-2 it will appear that it was in December 1987 that the  management  had received letter from the Asstt.   Labour Commissioner (Central), Dhanbad about raising of this dispute to  which the management replied by its letter dated 12.4.88. Thus  the  dispute  appears to have been raised in  the  year 1987,  about  13 years after the intimation was sent  to  the workman  through Ext.-4.  This would make the claim to be too stale to grant any relief to the workman at this stage.

Even  without  it, I have already held that the  workman  had lost  his lien on his appointment on his inability to  return on  the  expiry  of  the  leave.  That  loss  of  lien  being automatic,  the workman thereafter did not remain in  service and  there  was  nothing illegal about that.   The  automatic termination  was in accordance with the provisions  contained in  the  Standing  Orders  which  was  binding  both  on  the

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management, as well on the workman."

The  learned single Judge without discussing the material  on@@                                                  JJJJJJJJJJJJ record and the findings recorded by the Tribunal proceeded to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ hold  that the order dated 8.10.1974 issued by the  appellant terminating  the  services  of the  respondent  was  illegal, arbitrary  and violative of the principles of natural justice saying that it was issued without holding a domestic inquiry. The  learned  single  Judge referred to the cases  of  Uptron India  Ltd.   vs.  Shamim Bhan (AIR 1998 SC 1681)  and  Delhi Transport  Corporation  vs.   D.T.C.   Mazdoor  Congress  and another  (AIR 1991 SC 101) and took a view that it helped the cause  of  the  respondent.  In the first case  the  Tribunal itself  in the award held that the termination of services of the  workman  amounted to retrenchment within the meaning  of Section  2(oo)  of the Industrial Disputes Act and since  the other  legal requirements had not been followed the order  of termination  was  bad.  In the second case the  condition  of appointment  of  service regulations of the  Delhi  Transport Corporation  empowering  the  management for removal  of  the workmen  from  service  without   assigning  any  reason  was considered.   It  is  stated that "Regulation 9(b)  does  not expressly  exclude the application of the audi alteram partem rule  and  as such the order of termination of service  of  a permanent  employee  cannot  be passed by  simply  issuing  a month’s  notice under Regulation 9(b) or pay in lieu  thereof without  recording any reason in the order and without giving any  hearing to the employee to controvert the allegation  on the basis of which the purported order is made".

In   our  view  on  the  facts  of  the  case  in  hand   the aforementioned  two decisions were of no avail to support the case  of the respondent.  The learned single Judge also found fault  with the Tribunal as to the finding that the claim  of the respondent was too stale to grant any relief when parties had  not raised such a plea.  When the Tribunal on proper and objective  appreciation of the material on record found  that the  claim was made by the respondent after 13 years, it  was open to it to refuse relief to the respondent.  Moreover, the Tribunal  did not refuse relief merely on the ground of delay and  laches  as  is evident from paragraph 25  of  the  order extracted  above  inasmuch as the Tribunal has recorded  that even without considering the question of delay the respondent had lost his lien on his appointment.

The  learned  single Judge has acted as a court of appeal  in exercising  jurisdiction  under Articles 226 and 227  of  the Constitution  of  India,  that too without finding  that  the findings  of  fact  recorded  by  the  Tribunal  were  either perverse  or  unreasonable.  The Division Bench of  the  High Court  simply dismissed the appeal saying that no reason  was found  to  interfere  with the order of  the  learned  single Judge.

Whether  relief  can be declined on the ground of  delay  and laches,  depends on the facts and circumstances of each case. In this case claim was made almost after a period of 13 years without  any  reasonable or justifying ground and  there  was nothing  on  record  to  explain this delay as  held  by  the Tribunal.   When  the  respondent did not make claim  for  13 years  without any justification and on merits also he had no case,  the  Tribunal  did not rightly grant him  any  relief. Even otherwise the findings of facts recorded by the Tribunal

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in  the light of the Standing Orders aforementioned cannot be said to be untenable or perverse.

Thus  we  find merit in the appeal.  Hence it is allowed  for the  reasons  stated above.  The order of the learned  single Judge  and  that  of the Division Bench  affirming  the  same impugned  in  this appeal are set aside and the award of  the Tribunal  is  restored.  Parties to bear their own  costs  in this appeal.