TMI Blog1998 (2) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, filed before the Deputy Labour Commissioner, Lucknow, was registered as C.B. Case No. 310-1985. The State Government, by its order dated 18.7.1990, referred the following question for adjudication to the Industrial Tribunal, Lucknow: Whether the termination of the services of female Smt. Shammi Bhan, operator, daughter of C.N. Kaul, by the management by its letter dated 12.4.1985 is proper and legal. If not, the relief which the employee will be entitled to? 3. The Tribunal, by its Award dated 21st July, 1992, held that the termination of services of respondent 1 amounted to Retrenchment within the meaning of Section 2(00) of the Industrial Disputed Act and since all other legal requirements had not been followed, the termination was bad and consequently she was entitled to reinstatement as also fifty per cent of back wages from the date of termination till reinstatement. 4. This Award was challenged by the petitioner through a Writ Petition in the Allahabad High Court (Lucknow Bench) and the High Court, by the impugned judgment dated 28.10.1997, dismissed the writ petition upholding the findings of the Tribunal that termination of respondent's services was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to a contract of industrial employment, but the relationship so created is partly contractual, in the sense that the agreement of service may give rise to mutual obligations, for example, the obligation of the employer to pay wages and the corresponding obligation of the workman to render services, and partly non-contractual, as the States have already, by legislation, prescribed positive obligations for the employer towards his workmen, as, for example, terms, conditions and obligations prescribed by the Payment of Wages Act, 1936; Industrial Employment (Standing Orders) Act, 1946; Minimum Wages Act, 1948; Payment of Bonus Act, 1965; Payment of Gratuity Act, 1972 etc. 10. Prior to the enactment of these laws, the situation, as it prevailed in many industrial establishments, was that even terms and conditions of service were often not reduced into writing nor were they uniform in nature, though applicable to a set of similar employees. This position was wholly incompatible to the notions of social justice, inasmuch as there being no statutory protection available to the workmen, the contract of service was often so unilateral in character that it could be described as me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leness of any provision of the Standing Orders. 12. In pursuance of the above powers, the petitioner framed its own Standing Orders which have been duly certified. Clause 17(g) of the Certified Standing Orders, which constitutes the bone of contention between the parties, is quoted below: The services of a workman are liable to automatic termination if he overstays on leave without permission for more than seven days. In case of sickness, the medical certificate must be submitted within a week. 13. It was in pursuance of the above provision that the services of the respondent were terminated by the petitioner by observing in its letter dated 12th April, 1985, as under: The services of Mrs. Shammi Bhan, Token No. 158, Operator ceased automatically from Uptron Capacitors Ltd., Lucknow with immediate effect, in accordance with the clause 17(g) of the Certified Standing orders of Uptron Capacitors Limited. 14. Respondent No.1, admittedly, was a permanent employee. 15. Conferment of `permanent' status on an employee guarantees security of tenure. It is now well settled that the services of a permanent employee, whether employed by the Government, or Govt. compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the 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? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on this judgment, therefore, is wholly out of place. 24. It will also be significant to note that in the instant case the High Court did not hold that Clause 17(g) was ultra vires but it is did hold that the action taken against the respondent to whom an opportunity of hearing was not given was bad. 25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the services of the workman are terminated in accordance with that stipulation, such termination, according to Clause (bb), would also not amount to Retrenchment . 30. What was contended before the Tribunal as also before the High Court was that the termination of the services of respondent was covered by Clause (bb) of Section 2(00) and, therefore, it could not be treated as Retrenchment with the result that other statutory provisions, specially those contained in Section 25F of the Act were not required to be complied with. This argument which was not accepted by the Tribunal and the High Court has been stressed us also and here also it must meet the same fate as it is without any substance or merit. 31. From the facts set out above, it would be seen that the respondent was a permanent employee of the petitioner. There was no fixed-term contract of service between them. There was, therefore, no question of services being terminated on the expiry of that contract. In the absence of a fixed-term contract between the parties, the question relating to the second contingency, namely, that the termination was in pursuance of a stipulation to that effect in the contract o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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