K.S.LODHA, J. - (1.) M /s Hindustan Zinc Ltd. has filed this appeal against the judgment of a learned Single Judge of this Court dated December 6, 1985, by which its writ petition has been dismissed.
(2.) THE facts giving rise to this appeal may be briefly stated here. Respondent No. 2 Rameshwarlal Saadhya was employed in the Zinc Smelter, Debari of the petitioner -company as an Electrician on January 13, 1977. It was alleged that Rameshwarlal was in the habit of remaining absent from his duties unauthorisedly. On the last occasion when he absented himself without permission, a registered letter was sent to him on April 29/30, 1981 to join duties immediately, but he did not report on duty and continued to remain absent. Thereupon, an order was passed on May 15, 1981 stating that Rameshwarlal had remained absent from duty unauthorisedly for a continuous period of more than eight calender days without any authority and, therefore, his services have been terminated in terms of clause 12(f)(1) of the Standing Orders of the Company. It was further observed that his name had been removed from the Muster Rolls and he can collect his dues and compensation, admissible to him as per the Industrial Law on any working day during the working hours. On this Rameshwerlal filed an application under Section 33A of the Industrial Disputes Act, 1947 (here in after to be referred as 'the Act') before the Industrial Tribunal Udaipur, but that application was rejected on April 24, 1982. Thereafter, the Joint Secretary of the I.T.I. Trade Employees Association (here in after called as 'the Union') raised a dispute and, ultimately, the State of Rajasthan made a reference to the Labour Court to the following effect: Was the act of the petitioner in not taking respondent No. 2 back in service on 21 -5 -81 just and valid? If not, to what relief is the workman entitled? The Union filed a claim petition before the Labour Court and the petitioner company filed reply to it. Later, the petitioner -company also moved an application on October 11, 1983 for amendment of the reply, in order to incorporate the plea that Rameshwarlal was habitual absentee and as per clause 19(4) of the Standing Orders, this amounted to misconduct and, therefore, respondent No. 2 was discharged from service on account of misconduct, although the immediate cause for discharge was remaining absent without leave from April 11, 1981. This application was, however, dismissed by the the Labour Court, by its order dated October 11, 1983 on the ground that the plea was an after -thought. Ultimately the Labour Court, after hearing both the parties, answered the reference in positive and held that the termination of the services of the petitioner amounted to retrenchment, without following the provisions of Section 25F of the Act and, therefore, it was illegal. Consequently, the order of termination of the petitioner's service was set aside and he was directed to be re -instated. Full back wages were also awarded. It was against this order of the Labour Court dated Feb. 29, 1984, that the petitioner -company filed a writ petition before this Court, which was rejected by the learned Single Judge. The learned Single Judge held that the termination of the services of Rameshwar Lal was in pursuance of clause 12(f)(1) of the Standing Orders, which reads as under: If a workman remains absent from his duties unauthorisedly for a continuous period of 8 calendar days, his service will stand terminated after the expiry of 8 days absence. He further held that such termination of service amounts to retrenchment within the meaning of Section 2 of the Act, and in arriving at this conclusion, he placed reliance on Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji and Ors. 1977 LIC 1695 and L Robert Disouza v. The Executive Engineer, Southern Railway and Ors. AIR 1982 SC 854. He further found that the contention of the petitioner -company that according to the allegations made in the claim petition, the termination of Rameshwar Lal's services was on account of victimization and punishment, in breach of the principles of natural justice and, therefore, the management should have been given an opportunity to lead evidence after allowing the amendment prayed for in the reply by the Labour Court, was without any substance in as much as the order of termination clearly shows that it was in pursuance of clause 12 (f)(1) of the Standing Orders and, therefore, the question of victimization or punishment did not arise He further mentioned that the petitioner -company had itself unequivocally stated in the reply's paras 10 and 11 that the termination was in terms of clause 12(f)(1) of the Standing Orders and, therefore, it cannot now be allowed to turn round and try to support the order on the ground that the termination was by way of punishment. The learned Single Judge has further held that the amendment of Section 2 in 1984 did not in any way alter the position and he rejected the plea that in view of the amendment, the unamended Section 2 should be interpreted to mean that the termination, in pursuance of Clause 12(f) of the Standing Orders did not amount to retrenchment as the amendment is only clarificatory and the legislative intention has been clarified by this amendment on account of some conflict of decisions preceding the amendment. The learned Single Judge also rejected the application for amendment, as already stated above. Back wages were awarded as a result of holding the termination of the services as illegal and as no peculiar circumstances were brought to the notice of the learned Single Judge in order to deprive the workman of the back wages. We have heard the learned Counsel for the parties and have perused the record.
(3.) IT is not disputed before us that the services of Rameshwar Lal had been terminated vide order dated May 12, 1981 with specific reference to clause 12(f)(1) of the Standing Orders of the Company, without following the provisions of Section 25F of the Act. Therefore, the first and the foremost question, which arises for consideration is whether such termination amounts to retrenchment.;