A.K Mathur, J.:— The Rajasthan Slate Electricity Board, Jaipur and the Superintending Engineer (Const) Rajasthan State Electricity Board, Jodh-pur has filed this writ petition challenging the award of the Labour Court dated 19th March, 1985 (Ann. 13).
2. The respondent No. 2 was served with the charge sheet for non-compliance of the orders of the officers and his misbehaviour with Shri Virendra Nath the then Executive Engineer (REC), RSEB, Pali. He was further charge sheeted for claiming false T.A bills for the month of March to June, 1979, claiming false overtime for the year 1978 and some more charges. He was placed under suspension. During suspension period his head quarter was shifted from Pali to Sirohi. The suspension order and the relieving order were served upon the respondent No. 2 on 31st March, 1980. The respondent No. 2 never joined at his headquarter at Sirohi during suspension period and absconded himself after 31st March, 1980 therefore no enquiry against him could be concluded.
3. He was asked to join immediately at headquarter but inspite of sending reminders and letter the respondent No. 2 did not join. Thereafter a final notice was given to him and the same was published in Dainik Jangan dated 4th January, 1981 but inspits of that respondent No. 2 did not join at the headquarter. Since the respondent No. 2 did not join and after waiting for 43 days a dismissal order was issued on 16th February, 1981 This order was also published in the news paper. Aggrieved by the order of dismissal dated 16th. February, 1981 he moved the Labour Department of the State Government and the Labour Department, Government of Rajasthan referred the matter for adjudication to the Labour Court. The Labour Court after considering over the matter quashed the order of dismissal of the petitioner from service and aggrieved against that order the present writ petition has been filed by the petitioner Rajasthan State Electricity Board.
4. That before the Labour Court a resort was taken to regulation 21 of the Rajasthan State Electricity Board Employees Service Regulations, 1964 (hereinafter referred as the Regulations of 1964). According to regulation 21 if an incumbent absents himself for more than 8 consecutive days without leave he shall be deemed to have left the service of the Board without notice thereby terminating his contract of service. It was submitted that when the petitioner was asked repeatedly to report at Sirohi during the suspension period but he deliberately did not report and remained absent for more than 8 consecutive days, therefore by virtue of regulation 21 he ceased to have to be employee of the petitioner. But this contention has been negatived by the Labour Court. In similar circumstances this Court in Hindustan Zinc Limited, Zind Smelter, Debari, Udaipur v. The joint Secretary I.T.I Trade Employees Association, S.B Civil Writ Petition No. 1710 of 1984 decided on December 6, 1985 held the similar provision to be void relying on the decision of their Lordships of the Supreme Court in L. Robert D'souza v. The Executive Engineer, Southern Railway (1). Their Lordships of the Supreme Court observed as under:
“At the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expression ‘retrenchment’ in Section 2(oo) of the Act that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the Full Bench of Kerala High Court in L. Robert D'souza v. Executive Eagineer Sourrheru Railway (2), has been specifically overruled by this court in Santosh Gupta v. State Bank Of Patiala (3). This Court has consistently held in State Bank of India v. N. Sundra Money, (4). Hindustan Steel Ltd. v. Presiding Officer Labour Court (5), ‘and Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji (6), that the expression termination of service for any reason whatsoever’ now cover severy kind of termination of service except those not’ expressly included in Section 25-F or not expressly provided for by other provisions of the Act such as Sections 25-FF and 25 FFF. It was attempted to be urged that in view of the decision of this Court in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union (7), the ratio of which was reaffirmed by a Constitution Bench of this Court in Hari Prasad Shiyshanker Shukla v. A.D Divikar (8), all the later decisions run counter to the ratio of the Constitution Bench and must be treated per in curium. This contention need not detain us because first in Hindustan Steel Ltd. Case, then in Santosh Gupta's case and lastly in Mohan Lal v. Management Of M/S Bharat Electronics Ltd. (9) it was in terms held that the decision in Sundra Money's case was not at all inconsistent with the decision of the Constitution Bench in Hari Prasad Shukla's case and not only required no reconsideration but the’ decision in Snndra Money's case was approved in the aforementioned three cases. This position is further but tressed by the decision in Delhi Cloth and General Mills Ltd. case wherein striking of the name of a workman from the roll was held to be retrenchment. It is therefore, the settled law that the expression ‘termination’ of service for any reason whatsoever in the definition of the expression ‘retrenchment’ in Section 2(oo) of the Act covers every kind of termination of service except those not expressly included in Section 25-F or not expressly provided for by other provisions of the Act such as Sections” 25-FF and 25-FFF. Two things thus, emerge, firstly that the decision of the Full Bench of Kerla High Court under appeal has been specifically overruled by this court in Santosh Gupta's case and secondly, in view of the decision Delhi Cloth and General Mills Ltd. case striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning of expression ‘retrenchment within the meaning of expression ‘retrenchment’ in Section 2(oo). This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court.”
5. In Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji (supra), their Lordships of the Supreme held as under:
“Striking off the name of the workman from the rolls by the management is termination of his service. Such termination of service is retrenchment within the meaning of Section 2(oo) of the Act. The provisions of Section 25-F (a), the proviso apart, and (b) are mandatory and any peremptory conditions precedent, is invalid.
The order of striking off the name from the rolls could not also be justified under Section 27(c) of the Standing Orders where the workman was not absent for “more than eight consecutive days.”
(Paras 13 and 14)
6. Thus, in this view of the matter that such provision has been held to be ultra vires of the Article 14, therefore I do not find any error in the award so as to warrant any interference by this court.
7. Mr. Shishodia learned counsel for the petitioner has further submit ted that respondent No. 2 should not be allowed the benefit of the back wages for the reason that he was placed under suspension on 31st March, 1980 and he has remained absent therefore if termination order is set aside then the order of his suspension dated 31st March, 1980 will automatically revive. I am afraid this submission is without any basis. Once the order of termination dated 16th February, 1981 has been passed then order of his suspension stood merged in the order of termination. By setting aside order of termination it would not follow that his order of suspension will automatically revive. The order of suspension automatically ceased to exist when the non-petitioner No. 2 was dismissed from service. Thus, in these circumstances the back wages cannot be denied to the respondent No. 2. However it will be open for the petitioner to place the respondent No. 2 again under suspension and proceed with the enquiry in accordance with law.
8. In the result I do not find any merit in this writ petition and it is dismissed. No order as to costs.
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