Decided on February 13,1973

M C MAHAJAN Respondents


- (1.) This application under Article 226 of the Constitution of India is directed against an award of the Labour Court made under Section 33-A of the Industrial Disputes Act, briefly the Act.
(2.) This case was registered on the complaint of the workman by the name of Hangsha Dhar Kalita, who was at the relevant time a clerk in the textile factory of the petitioner. It is admitted by Mr. K. Lahiri, the learned Counsel for the petitioner, that there was an industrial dispute pending at the time of termination of service of this workman. He. however, submits that this was a termination simpliciter and Section 33 of the Act is not attracted as it is not a case of dismissal for misconduct. The same point was also pressed into service before the Labour Court. The Labour Court found that there was an appeal pending against the certified standing orders before the appellate authority. The management, however, filed an application under Article 226 of the Constitution questioning the proceedings before the appellate authority which, according to the management, were time-barred and that the appellate authority had no jurisdiction to i condone the delay. The High Court allowed the application of the management and held that the appeal was time barred and the appellate authority had no jurisdiction to entertain the same and had also no power to condone the delay under Section 5 of the Limitation Act. The High Court, however, observed that either the workman or the employer, if aggrieved by the standing orders, may take appropriate measures provided under the Industrial Employment (Standing Orders) Act, hereinafter referred to as the "Standing Orders Act", to amend, alter or to add to the standing orders. The Labour Court heard the case while the matter was pending before the High Court. The award of the Labour Court was published on 6-5-1970 and perhaps was actually made sometime earlier. The Civil Rule was disposed of by the High Court on 8-9-71. Naturally, therefore, the Labour Court was deprived of the view of this Court in the matter. We would have thought that the Labour Court would have postponed hearing of this matter since the matter was pending before this Court. At any rate, the entire basis of the Labour Court's order was that the model standing orders were applicable in this case. On the other hand, Mr. Lahiri has drawn our attention to the certified standing orders which but for an infructuous appeal was in force at the relevant time and we may only read the material portion of clause 9 (d) of that standing order for our purpose: "9 (d) Any workman who (i) absents himself without permission for more than eight consecutive days, (ii) ............... shall be deemed to have left the service of the company of his own accord and the same shall be intimated to the workman concerned in writing and he ceases to be an employee of the Company." We had occasion to deal with this clause of the standing orders in a Division Bench decision of this Court in (Assam) (Montoor Ahmed V/s. The Presiding Officer, Industrial Tribunal, Gauhati, 1971 LabIC 1006), where the Court held that this clause provides for automatic termination of service and the same is not a dismissal for misconduct. In other words, this termination of service is a term of the contract between the parties and certified under a statute. There is, therefore, no escape from this condition as long as the standing orders are in force. The Labour Court seemed to fly in the face of these standing orders on the plea that these were not to be applied because of Section 7 of the Standing Orders Act. Since, however, we find that the certified standing orders were legally valid on the date of termination of service invoking clause 9 (d) in the order passed by the employer, the model standing orders would not be attracted and Section 12-A of the Standing Orders Act would not apply. There is, therefore, a manifest error of law apparent on the face of the records. This would not have been possible for the Labour Court to do if in a case like this it would have postponed the hearing until disposal of the matter by the High Court. In these circumstances we are not inclined even to remand this matter to the Labour Court.
(3.) There is, however, another serious objection to the award. In view of the fact that the order is merely a termination simpliciter under the standing orders and not one for misconduct, Section 33 of the Act is not applicable at all. A Division Bench of this Court has held so in the case of The Assam Match Co. Ltd. V/s. The Presiding Officer, Labour Court,1972 LabIC 258(Assam). Even after reconsidering the matter once again, we have no reason to take a different view in the matter. The proceedings before the Labour Court were, therefore, without jurisdiction as when Section 33 is not attracted, there can be no complaint under Section 33-A of the Act. In any view of the matter, the impugned award is invalid and the same is hereby quashed.;

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