Janarthanam, J. - (1.) THIS writ petition is directed against the Government's refusal to make a reference.
(2.) THIRU A. Veerapandian an employee of Indian Oxygen Ltd., the second respondent herein, went to his native place during the Deepavali holidays in 1978. Quite unexpectedly, he was stated to have fallen ill there and subsequently he was unable to join duty immediately. He returned for duty on January 29, 5 1979, and produced medical certificate for the period of his absence due to sickness. The second respondent did not allow him to resume duty. Therefore, through the petitioner Union, he raised an industrial dispute. Conciliation proceedings initiated before the Labour Officer, I, Madras, failed. On receipt of the failure report, the Government of Tamil Nadu/first respondent herein, after taking into consideration the relevant materials, declined to make a reference by its order in G.O.Ms. No. 2112, Labour and Employment Department, dated December 20, 1979. It is this order of the first respondent that is now challenged in this writ petition. 2a. From the pith substance of the submissions made by learned counsel on both sides, the following points emerge for consideration : (i) Whether the Government's refusal to make a reference suffers from the serious infirmity of considering extraneous or irrelevant matters " (ii) Whether the writ petition is liable to be dismissed merely on the ground of laches " (iii) Whether the workman A. Veerapandian's abstention from duty without sanction of leave for more than eight consecutive days amounts to abandonment of his job and consequent termination thereof, on the face of clause Nos. 7(f) and 12(vi) of the Standing Orders, thereby not entitling him to raise an industrial dispute " Point No. (iii) is so intimately and inextricably connected with point No. (i), meriting discussion simultaneously. The finding given either way on the question of abandonment, is likely to have an impact on the question of the Government's refusal to make a reference. Different consequences are to follow if the workman Veerapandian's abstention from duty without sanction of leave amounts to abandonment of his job and consequent termination thereof. If a finding is to be recorded that his abstention from duty in the circumstances of the case amounts to abandonment of his job, the termination of his services is the sphere of law of industrial parlance can by no stretch of imagination be stated to amounting to termination of service as a consequence of discharge, dismissal or retrenchment, since the termination of his service in such eventuality is automatic without there being any over act on the part of employer terminating his services. In such a situation, the further question that poses for consideration is whether the individuals whose services automatically stood terminated could be considered as workman as defined under S.2(s) of the Industrial Disputes Act. 1947, hereinafter referred to as 'the Act' so at to enable them to raise an industrial dispute under S.10(1) of the Act. The effect of the salient provision adumbrated under S.10(1) in the context of S.2A of the Act is that only workman who had been discharged, dismissed, or retrenched or whose services have been otherwise terminated could raise an industrial dispute and on the face of such provision, if the concerned workman is to be construed in the circumstances of the case as a person not falling within any of the above categories, the provisions of S. 10(1) cannot at all be invoked for reference. To put it otherwise, because of the automatic termination of his service on his abstention from duty without leave for more than the requisite number of days, as incorporated in the Standing Orders, he could not at all be considered to be a workman as defined under S.2(s) of the Act, so as to enable him to raise an industrial dispute. If the admitted facts and circumstances of the case warrant such a conclusion, then it is legitimately open to the Government to decline to make a reference on the sole ground of his being not a workman as defined under the Act.
(3.) WE now proceed to sift the materials available on record, inclusive of the relevant Standing Orders, in an endeavour to reach a just conclusion in the case. In the process of analysis of such materials, we may advert to certain facts admitted, beyond pale of controversy, they being : The workman went to his native village during the Deepavali holidays in 1978. He was stated to have fallen ill there. After he was cured of the malady of the illness with which he was suffering, he reported for duty on January 29, 1979, These aspects are referred to in his letter dated January 29, 1979 addressed to the Manager of the first respondent company. Of course, no reference is made in the letter as to from what date he absented himself without leave. Though this aspect is not specifically referred to in his letter, there is no controversy as to his abstention from duty without leave on and from November 1, 1978. Nothing is seen from the contents of the said letter, that he had sent any application for leave, enclosing a medical certificate for his illness. As such, the sordid but admitted fact remains that he was absent between November 1, 1978 and January 28, 1979, without making any application for leave and consequent sanction thereof. When he returned for duty on January 29, 1979, the first respondent did not allow him to resume duty on the fact of the provisions adumbrated in clauses 7(f) and 12(vi) of the Standing Order.;