STATE OF PUNJABversusJAGIR SINGH

A                              STATE OF PUNJAB
                                      v.
                                 JAGIR SINGH

                             SEPTEMBER 27, 2004

B                [N. SANTOSH HEGDE AND S.B . .SINHA, JJ.]

         Labour Laws:

         Industrial Disputes Act, 1947:
c        Section 25-F-Retrenchment-Retrenchment compensation-Entitlement
    to--Termination of services of workman-Due to misconduct-Held: If the
    services of a workman were terminated due to misconduct, the question of
    payment ofany retrenchment compensation or service ofany statutory notice
    would not arise-The question of compliance with the provisions of S. 25-
D   F would arise ifthe services ofa workman were terminated on a ground other
    than misconduct.

          Termination ofservices-Naturaljustice-Principles-Applicability of-
    Held: When a discretion is conferred upon the employer to terminate or not
    to terminate the services ofan employee, the principles ofnatural justice are
E   ordinarily required to be compiled with-The said principles are applicable
    even if the services are terminated in terms ofproviso to Art. 309-But the
    said principle cannot be put in a straitjacket formula-It cannot be applied
    in a vacuum without reference to the relevant fact situation-Constitution of
    India, 1950, Art. 309.
F
          Termination of services-Back wages-Entitlement to--Workman
    remained absent from duty-Despite having been asked to rejoin duty he did
    not do so--Ho_wever, the Labour Court and High Court directed reinstatement
    of the workman with back wages-Correctness of-Held: While directing
    grant of back wages, the Labour Court was required to consider the totality
G   of the circumstances-The conduct of the workman had also an important
    role to play-Even, if it was obligatory to comply with Rr. 5 and 8 of the
    1970 Rules, the workman, having regard to the totality of the situation, was
    not entitled to back wages-Hence, Labour Court and High Court committed
    a manifest error in granting back wages in favour of the workman-Service
H   Law-Punjab Civil Services (Punishment and Appeals) Rules, 1970, Rr. 5
                                          734
                        STATE v. JAGIR SINGH                           735

and 8-Punjab Civil Services Rules, 1953, R, 3.25.                             A
     Words & Phrases:

     "Retrenchment"-Meaning of-Jn the context of Section 25-F of the
Industrial Disputes Act, 1947.
                                                                              B
     The respondent-workman absented himself from duty for about 3
months. The respondent did not apply for any grant of leave. He was
asked to report for duty by a registered letter but despite the same he
did not comply with the said request. As regard his absence from duty,
a notice was published in the newspapers but despite the same he did
not join his duties within the time specified therein. The appellant-State,
                                                                              c
therefore, on the ground of his being absent from duty, terminated his
services. Questioning the legality of the said order, a purported demand
was raised by the respondent to reinstate him in service. The respondent
was not reinstated in service and the appellant-State raised an industrial
dispute under Section lO(l)(c) of the Industrial Disputes Act, 1947.          D
     The Labour Court set aside the order of termination on the ground
that the mandatory requirements of Section 25-F of the Act were not
complied with and directed the appellant-State to reinstate the
respondent-workman with continuity in service and full back wages.
However, the High Court held that the respondent was entitled only to         E
60% of the back wages while upholding the direction for reinstatement
of the respondent. Hence the appeals.

     On behalf of the respondent, it was contended that the order of
termination was rightly set aside by the Labour Court as no disciplinary
                                                                              F
proceedings were initiated against the respondent under Rules 5 and 8
of the Punjab Civil Services (Punishment and Appeals) Rules, 1970 and
Rule 3.25 of the Punjab Civil Services Rules, 1953.

     The following question arose before the Court:
                                                                              G
     Whether the workman was entitled to back wages?

    Allowing the appeal of the State and dismissing the appeal of the
workman, the Court

     HELD : 1.1. The findings of the Labour court that the mandatory          H
    736                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   requirements of Section 25-F of the Industrial Disputes Act, 1947 were
    not complied with are inconsistent and self-contradictory. If the services
    of a workman were terminated for misconduct, the question of payment
    of any retrenchment compensation or service of any statutory notice
    would not arise. The question of compliance with the provisions of Section
B   25-F of the Act would arise, if the services of the concerned workman
    were terminated on a ground other than misconduct. [740-F-G]

         1.2. The Labour Court furthermore failed to consider the conduct
    of the workman in not joining his duties despite having been asked to
    do so by a registered letter as well as publication of a notice in the
c   newspaper. While directing grant of back wages, the Labour Court was
    required to consider the totality of the circu.mstances. The conduct ·of
    the workman had also an important role to play. [740-H; 741-A]

         2. When a discretion is conferred upon the employer to terminate
D   or not to terminate the services of the concerned employees, the principles
    of natural justice are ordinarily required to be complied with. However,
    the conduct of the workman would play an important role as regard
    direction upon the employer to pay back wages. In this case, no leave
    was either sought for or granted. No material was brought on. record
    except the oral statement of the workman that an application for leave
E   had been filed. It is not in dispute that the State issued a registered letter
    directing the workman to join his duty. As he did not do so, notice of
    his absence was published in the newspaper. These facts would appear
    from the letter of termination itself, which has been annexed with the
    Special Leave Petition filed by the workman as also his counter Affidavit
F   to the Special Leave Petition filed by the State. [741-D-F]

          Uptron India Ltd v. Shammi Bhan, [1998) 6 SCC 538, relied on.

          3. Indisputable, the principles of natural justice may have to
    be complied with having regard to the conditions of service governed by
G   the rules framed in terms of proviso to Article 309 of the Constitution.
    But the said principle cannot be put in a straitjacket formula. It
    cannot be applied in a vacuum without reference to the relevant fact
    situation. [742-A-B]

H         Punjab and Sind Bank v. Sakkattar Singh, (2001] 1 SCC 214 and Dr.
                 STATE v. JAGIR SINGH [SINHA, J.]                    737

Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.), [2004] 5 SCC 263,      A
relied on.

     Scooters India Ltd v. M Mohammad Yaqub, {2001] I SCC 61, held
inapplicable.

     Anil Bajaj (Dr.) v. Postgraduate Institute of Medical Education &      B
Research, (2002] 2 SCC 240, cited.

      4.1. In this case, as despite several opportunities the workman did
not join his duties at all, the Labour Court and the High Court committed
a manifest error in granting back wages in his favour. [72-H; 743-A)        c
     4.2. Moreover, even if it is assumed that in the facts and
circumstances of this case, it was obligatory on the part of the State to
comply with Rules 5 and 8 of the Punjab Civil Services (Punishment and
Appeals) Rules, 1970, the workman, having regard to the totality of the
situation, was not entitled to back wages. [743-B)                          D
     5. However, keeping in view of the fact that the workman had
already been reinstated and has since retired, it was not considered
expedient to go into the question of correctness or otherwise of the
award directing reinstatement of the workman. [743-C)
                                                                            E
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1168 of2002.

    From the Judgment and Order dated 7.12.2000 of the Punjab and
Haryana High Court in C.W.P. No. 8212 of 1999.
                                                                            F
                                 WITH

     C.A. No. 1167 of 2002.

    Kuldip Singh, Harpreet Singh Sandhu and Arun K. Sinha for the
Appellant.                                                                  G
     Manoj Swarup and Ms. Nidhi Agarwal for the Respondent.

     The Judgment of the Court was delivered by

     S.B. SINHA, J. : These two appeals arising out of a common judgment    H
    738                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   and order dated 7.12:2000 passed by a Division Bench of the Punjab and
    Haryana in Civil Writ Petition No.8212 of 1999 involving similar questions>
    of law and fact were taken up for hearing together and are being disposed
    of by this common judgment.

B          Jagir Singh, the Appellant in Civil Appeal No.1167 of 2002 will be
    hereinafter referred· to as 'the workman'; whereas the State of Punjab,
    Appellant in Civil Appeal No.1168 of 2002, will be hereinafter referred to
    as 'the State'.

    FACTS:
c
          The workman herein joined the service in the Punjab Roadways, Taran
    Taran, in the year 1965 as a driver. It is not in dispute that he absented himself
    from duty from 2.5.1979 to 3.8.1979. The workman did not apply for any
    grant of leave. He was asked to report for duty by a registered letter dated
D   22.6.1979 but despite the same he did not comply with the said request. As
    regard his absence from duty, a notice was published in the newspapers but
    despite the same he did not join his duties within the time specified therein.
    The State, therefore, on the ground his being absent from duty, terminated
    his services with effect from 3.8.1979. Questioning the legality of the said
    order, a purported demand ~as raised by the workman to reinstate him in
E   service by a letter dated 5.3.1981. An industrial dispute was raised in relation
    whereto, conciliation proceedings were held. Consequent upon failure of the
    parties to arrive at an amicable settlement therein, the dispute was referred
    to the Labour Court by the State purported to be in exercise of its power under
    Section 10( l) (c) of the Industrial Disputes Act, 1947 (hereinafter referred
F   to as 'the Act') by a notification dated 25.8.1993 on the following :

             "Whether termination of the services of the workman is justified and
             in order ? If not, to what relief/exact amount of compensation is he.
             entitled ?"

G         The said reference was answered in favour of the workman and against
    the State by an award dated 2.5.1997. In terms of the award, the State was
    directed to reinstate the workman with continuity in service and full back-
    wages stating :


H                  "In view of my findings on the aforesaid issues the workman
                   STATE v. JAGIR SINGH [SINHA, J.]                        739

        is entitled to be reinstated with continuity in service and since the      A
        workman has stated that he had remained unemployed throughout,
        and there being no evidence contradicting above statement by
        management in this regard, workman shall be entitled to full back-
        wages from the date of demand notice and all allied benefits. The
        reference is answered as such. No order as to costs. The workman           B
        is directed to report for duty within 30 days of the publication of
        the award."

     The State thereafter filed a writ petition questioning the said award
before the Punjab and Haryana High Court on 2.6.1999. The High Court by
reason of its impugned judgment dated 7.12.2000 allowed the writ petition          C
in part to the limited extent that instead and place of full back-wages, the
workman was held to be entitled to 60% of the back-wages, while upholding
the direction for reinstatement of the workman, stating :

               "So far as back wages are concerned, the Labour Court
         awarded full back wages from the date of demand notice. However,          D
         it can be seen that the demand notice was issued on 5 .3 .198 l.
         Reference was made on 25.8.1993 and the impugned order is dated
         2.5.1997. In view of this position, we restrict back wages to 60%
         from the date of demand notice. The writ petition deserves to be
         allowed to this extent. In the light of above discussion, this writ       E
         petition is partly allowed. The back wages are restricted to 60% only
         from the date of demand notice. Rest of the prayer made ir the writ
         petition is declined."

    Aggrieved, both the State and the workman have filed these appeals
upon obtaining special leave.                                                      F

      Mr. Kuldip Singh, learned counsel appearing on behalf of the State,
would submit that keeping in view the fact that the workman failed and/or
neglected to join his duties despite receipt of notice and publication as regard
his absence from duty in the newspapers, he was not entitled to any relief.
                                                                                   G
In such a situation, the learned counsel would contend that the provisions of
the Punjab Civil Services (Punishment and Appeals) Rules, 1970 would have
no application inasmuch as no leave having been granted, the question of
initiation of a disciplinary proceeding would not arise.

     Mr. Manoj Swamp, learned counsel appearing on behalf of the workman,          H
    740                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   per contra, would submit that the conditions of services of the workman
    being governed by the statutory. rules, being the Punjab Civil Services
    (Punishment and Appeals) Rules, 1970 and the Punjab Civil Services Rules,
    I 953, the impugned order of tennination has rightly been set aside by the
    Labour Court in view of the fact that no disciplinary proceeding was initiated
B   against the workman as is mandatorily required under Rules 5 and 8 of I 970
    Rules and Rule 3.25 of 1953 Rules. It was pointed out that the State's plea
    of abandonment of service on the part of the workman was also found to be
    incorrect. According to the learned counsel, as no material was brought on
    records by the State to show that the workman had availed of any alternative
    employment, the workman was entitled to· full back-wages from the date of
c   issuance of the demand. It was argued that only because more than twelve
    years have elapsed. from the date of the demand and the date of reference,
    it cannot be said that delay was attributable to the workman as the delay, if
    any, in making the reference was on the part of the State.


D         Before adverting to the questions raised in these appeals, we may record
    that pursuant to the award dated 2.5.1997, the workman was reinstated in
    service with effect from 24.8. I 999 and he reached the age of superannuation
    in March 2004.

         The short question; therefore, which arises for our consideration in these
E   appeals is as to whether the workman is entitled to back-wages.

          It is not in dispute that the workman did not perfonn any duty since
    2.5.1979. The Labour Court made its award only on the ground that before
    issuing the order of termination dated 3.8. I 979, no disciplinary proceeding
F   was held in terms of the Punjab Civil Services (Punishment and Appeaki)
    Rules and furthennore the mandatory requirements of Section 25F of the
    Industrial Disputes Act, 1947 were not.complied with. The' findings of the
    Labour Court are inconsistent with and self-contradictory. If the services of
    the workman were terminated for misconduct, the question ~fp~yment of any
    retrenchment compensation or service of any statutory notice would not arise.
G   The question of compliance of the provisions of Section 25F of the Industrial .
    Disputes Act would arise, if the services Of the concerned workman were
    terminated on a ground other than misconduct.

        The Labour Court furthennore failed to consider the conduct of the
H   workman in.not joining to his duties despite having been asked to do so by
                   STATE v. JAGIR SINGH [SINHA, J.]                         741

a registered letter as well as publication of a notice in the newspapers. While     A
directing grant of back-wages, the Labour Court was required to consider the
totality of the circumstance. The conduct of the workman had also an
important role to play. The services of the workman were tenninated on
3.8.1979. He merely asked for his reinstatement in service on or about
5.3 .1981. There is nothing on record to show as to when the industrial dispute
                                                                                    B
was raised. Even if he had raised an industrial dispute in 1981, it does not
stand to any reason as to why he kept mum till the reference was made in
the year 1993.

      We may notice that in Uptron India Ltd. v. Shammi Bhan and Another,
[1998] 6 SCC 538, the question as to whether a statute or a Standing Order          c
having the force of law containing the provision of automatic tennination on
the ground of overstay of the leave for a certain number of days is ultra vires
or not came up for consideration before this Court wherein it was held that
when a discretion is conferred upon the employer to tenninate or not to
tenninate the services of the concerned employees, principles of natural
justice are ordinarily required to be complied with. However, as indicated          D
hereinbefore, the conduct of the workman would play an important role as
regard direction upon the employer to pay back-wages. In this case, no leave
was either sought for or granted. No material was brought on record except
the oral statement of the workman that an application for leave had been filed.
It is not in dispute that the State issued a registered letter directing the        E
workman to join his duty. As he did not do so, notice of his absence was
published in the newspaper. These facts would appear from the ;etter of
tennination itself which has been annexed with the Special Leave Petition
filed by the workman as also his Counter Affidavit to the Special Leave
Petition filed by the State.
                                                                                    F
       Mr. Manoj Swarup, learned counsel appearing on behalf of the workman,
placed strong reliance on Scooters India Ltd. v. M Mohammad Yaqub and
Another, [200 I] I SCC 61. Therein, the question which arose for consideration
was as to whether giving of such notices would amount to sufficient
compliance of principles of natural justice or not having regard to the fact        G
situation obtaining therein. In paragraph 12 of the judgment it was categorically
held that the records therein indicated that no opportunity had been granted
to the workman to join his duty.

  . This Court in different decisions applied the principles of natural justice
having regard to the fact situation obtaining therein.                              H
    742                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A         Indisputably, the principles of.natural justice may have to be complied
    with having regard to the conditions of service governed by the rules framed.
    in tenns of proviso appended to Ait~~le _3D9 of the Constitution of India. But
    the said principle cannot be put in ll'~trait-jacket fonnula. It cannot be applied
    in a vacuum without reference to the relevant fact situation. [See Punjab and
B   Sind Bank and Others v. Sakattar Singh, [2001] 1 SCC 214 and Dr.
    Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.) and Others, [2004]
    s sec 263]. ' ·
           In Dr. Gurjeewan Garewal (supra), this Court noticed:

c            "Recently in another case of a ·very similar nature A nil Bajaj (Dr.)
             v. Postgraduate Institute of Mddical Education & Research, [2002]
             2 SCC 240 this Court held :
                                     \

                          "A person who gets an advantage, namely, ofa sanction
                   to go abroad on service on the condition that he will come back
D                  within two years and if he does not come back, his lien will
                   automatically be regarded as being tenninated, he then cannot
                   tum around and challenge the said condition on the basis of
                   which sanction to go abroad was granted ..... but where the facts
                   are not in dispute the inquiry would be an empty fonnality. In
E                  any case the principle of estoppel would clearly apply and the
                   High Court was right in dismissing the writ petition filed by
                   the appellant wherein he had challenged his tennination."

                   Similarly, in the case in hand the 1st respondent was or.iginally
             granted an ex-India leave for two years on the express condition that
F            she will be deemed to have vacated the post if she opts not to join
             after the leave period. But she preferred to remain in the greener
             pastures for a pretty long time in spite of the repeated reminders
             from PGIMER. She employed the case before the High Court as a
             dilatory tactic to continue with her foreign assignment and evaded
             herself from joining under some pretext or the other."
G
         On the aforesaid findings, t~is Court vacated the stay of holding the
    departmental proceeding as against the Respondent No.-1 therein.

         ln this case, as despite several opportunities the workman did not join
H   his duties at all, we are of the opinion that the Labour Court and the High
                       STATE v. JAGIR SINGH [SINHA, J.]                       743

    Court committed a manifest error in granting back-wages in his favour.           A
          As noticed hereinbefore, the letter of termination issued to the workman
    itself c;uggests that such an opportunity had been granted. We are, therefore,
    of the opinion that even if it is assumed that in the facts and circumstances
    of this case, it was obligatory on the part of the State to comply with Rules    B
    5 and 8 of the Punjab Civil Services (Punishment and Appeals) Rules, the
    workman having regard to the totality of the situation was not entitled to
    back-wages.

         We may place on record that keeping in view of the fact that the
    workman had already been reinstated and has since retired, it was not            c
    considered expedient to go into the question of correctness or otherwise of
    the award directing reinstatement of the workman.

         For the foregoing reasons, the appeal preferred by the State is allowed
    and that of the workman is dismissed. No costs.
                                                                                     D
    v.s.s.                                         C.A. No. 1168/2002 allowed.
                                                 C.A. No. 1167/2002 dismissed.




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