S.K.Dhaon, J. - (1.) This petition has been referred by an employer. In it an award given by the Labour Court, Ghaziabad in an adjudication case is being impugned.
(2.) In the purported exercise of powers under Section 4-K of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) the State Government made a reference of an industrial dispute. The English rendering of the terms of the reference was somewhat like this : "Was the termination of the services of the workman Sri M. S. Gautam by the employer on 29th August, 1977, lawful. If not, to what relief was the workman entitled." According to the employer, Sri M. S. Gautam, the respondent No. 3 (hereinafter referred to as the workman) was appointed on 5th May, 1973, as an Account Assistant on the basis of letter of appointment issued by it. Paragraph 9 of the said letter of appointment ran s "It is under stood that though you have been appointed at the Guldhar Office at Ghaziabad, you may be transferred to any other place any where in India or to any allied concern should the exigencies of service so require of which the management shall be the sole judge." Thereafter, the workman was promoted as a store-keeper. On 7th June, 1977, the employer sent a communication to the workman in which it was, inter alia, stated that his services were required at the Head Office and he should report at the Head Office as soon as possible. This communication was followed by another communication dated 15th June, 1977 and in that communication it was made clear to the workman that the failure to comply with the order of 7th June would entail disciplinary action. Some more correspondence ensued between the employer and the workman and eventually the workman did not report himself at the Head Office and the order of transfer was observed in its breach. On 29th August, 1977, an order terminating the services of the workman was passed. The operative portion of this order ran as under t ". . . . As you have failed to join your duties at Head Office and you have not applied for any leave, it is clear that you are not interested in continuing your services in our Company and have abandoned your services. Therefore your services are treated as terminated and you may collect your dues from the registered office of the company on any working day of the Company against proper receipt for the amount."
(3.) In the purported exercise of powers under clauses (b), (o) and (g) of Section 3 of the Act the Governor made the Uttar Pradesh (Industrial Employment) Standing Order, 1972 (hereinafter referred to as the Standing Order) and this was duly enforced by a notification in the Gazette. Before the Labour Court the employer placed reliance upon the Standing Order 15(9) which run 1 "A workman remaining absent without leave for a period exceeding fifteen days at a stretch shall be deemed to have abandoned the employment." The workman produced a certificate of the doctor of the Employees State Insurance according to which he (the workman) was ill between 4th June and 5th July, 1977, both days inclusive. The workman in turn contended that though the order dated 29th August, passed by the employer was couched in the language so as to enable it to be treated as containing as order of termination, the employer had in fact dismissed him on the ground on misconduct and imposed him the punishment of dismissal from service. This action was illegal as admittedly the procedure as prescribed in Standing Order 26 had not been followed.;