# M/s Kailash Motors, Kanpur v. Presiding Officer, Labour Court (1), Kanpur and others

- **Citation:** (2003) 2 ILRA 549
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-07
- **Case number:** Civil Misc. Writ Petition No. 4604 of 1980
- **Bench:** V.M. Sahai, K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kailash-motors-kanpur-v-presiding-officer-labour-court-1-kanpur-and-others-40175
- **Pages:** 5

## Headnote

Sri K.P. Agarwal
Sri Y.D. Dwivedi
Ms. Suman Sirohi
S.C.

Labour & Service- Removal- muster roll
employee
abandonment
-whether
amount
to
retrenchment?
Question
referred to larger bench- held, such
removal
amount
to
retrenchment-
without following mandatory provisions
his name can not be struck from muster
roll.

Held- Para 9

In absence of fixed term contract the
termination of service of a workman or
striking off his name from muster-roll
would not be covered in the exception to
retrenchment. The petitioner's service
had been terminated by the respondents
under the standing orders treating it to
be abandonment of employment. The
abandonment of service has not been
excluded
from
the
definition
of
retrenchment.
Therefore,
before
terminating the services of the workman
the petitioner was required to follow the
mandatory procedure of retrenchment.
The removal of the name of workman
from the register and depriving him from
work would amount to retrenchment and
would be bad, as mandatory provisions
of retrenchment had not been followed.
Case laws discussed:
1990 (61) FLR 1
1991 (63) FLR 721
1993 (66) FLR 211
1998 (79) FLR 233
2001 (88) FLR 274
2001 (88) FLR 383
2000 (85) FLR 807
2002 (95) FLR 43

## Text

2 All] M/s Kailash Motors, Kanpur V. Presiding Officer, Labour Court, Kanpur and others
549
category. That being the factual and legal
position, the claim of petitioner, Ram
Singh Yadav cannot survive.

10. In view of above discussion, this
writ petition deserves to be dismissed and
is hereby dismissed. Interim order, if any,
stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2003

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE K.N. OJHA, J.

Civil Misc. Writ Petition No. 4604 of 1980

M/s Kailash Motors, Kanpur ...Petitioner
Versus
Presiding Officer, Labour Court (1),
Kanpur and others
 ...Respondents

Counsel for the Petitioner:
Sri J.N. Tiwari
Sri C.B. Gupta

Counsel for the Respondents:
Sri K.P. Agarwal
Sri Y.D. Dwivedi
Ms. Suman Sirohi
S.C.

Labour & Service- Removal- muster roll
employee
abandonment
-whether
amount
to
retrenchment?
Question
referred to larger bench- held, such
removal
amount
to
retrenchment-
without following mandatory provisions
his name can not be struck from muster
roll.

Held- Para 9

In absence of fixed term contract the
termination of service of a workman or
striking off his name from muster-roll
would not be covered in the exception to
retrenchment. The petitioner's service
had been terminated by the respondents
under the standing orders treating it to
be abandonment of employment. The
abandonment of service has not been
excluded
from
the
definition
of
retrenchment.
Therefore,
before
terminating the services of the workman
the petitioner was required to follow the
mandatory procedure of retrenchment.
The removal of the name of workman
from the register and depriving him from
work would amount to retrenchment and
would be bad, as mandatory provisions
of retrenchment had not been followed.
Case laws discussed:
1990 (61) FLR 1
1991 (63) FLR 721
1993 (66) FLR 211
1998 (79) FLR 233
2001 (88) FLR 274
2001 (88) FLR 383
2000 (85) FLR 807
2002 (95) FLR 43

(Delivered by Hon'ble V.M. Sahai, J.)

1. The question which has been
referred to larger bench by the learned
Single Judge is extracted below:-

"Whether removal of name of a
workman from the muster-roll on the
ground of abandonment amounts to
retrenchment as contemplated by the
Industrial Disputes Act, 1947 and the
Uttar Pradesh Industrial Disputes Act,
1947?"

2. The facts in brief are that the
petitioner is a small-scale unit engaged in
sales and purchase of Tata Diesel
vehicles, Bajaj Scooters and other auto
vehicles and was employing about 40
workmen. The establishment of the
petitioner is a shop within the meaning of
U.P.
Shops
and
Commercial
Establishments Act, 1962. The State of
Uttar Pradesh has framed standing orders
http:\\allahabadhighcourt.nic.in
INDIAN LAW REPORTS ALLAHABAD SERIES [2003
550
which are known as Standing Orders 1972
which came into force under section 3 (b)
of the U.P. Industrial Disputes Act, 1947
(in brief the U.P. Act) with effect from
14.8.1972.
Sri
Pratap
Singh,
the
respondent no. 3 (in brief the workman),
was employed on 7.4.1971 in the
petitioner's establishment. He applied for
one day's casual leave on 13.11.1972.
After expiry of leave he did not report for
duty and remained absent for four weeks.
On 5.12.1972 his name was struck off
from the register on the ground that he
had abandoned his employment. He was
informed about the order sent by
registered as well as ordinary post on
6.12.1972. He reached the office on
6.12.1972 and signed the attendance
register, which was cut off by the
manager
of
the
establishment.
The
workman raised an industrial dispute. The
State Government on 25.7.1973 referred
the dispute, under section 10 (1)(c) to the
Labour
Court,
Kanpur
which
was
registered as Adjudication Case No.
209/1973, as to whether the name of Sri
Pratap Singh clerk had been validity
struck off on 5.12.1972 from the register
depriving him from his work and as to
what relief the workman was entitled?

3. The Labour Court by its award
dated 31.1.1980 held that the workman
overstayed his leave but it was not a case
of abandonment of employment. It
directed reinstatement of the workman
within a week and granted 25% back
wages from 14.11.1972 till the date of
reinstatement. The was challenged before
this court. Two questions arose, whether
absence by the workman after expiry of
the leave amounts to abandonment of
employment and whether striking off the
name of workman from muster-roll, due
to absence without leave, after expiry of
the
period
in
the
standing
orders
amounted to retrenchment. Since there
was difference of opinion on these
aspects, the learned Single Judge hearing
this petition referred the matter to the
larger bench to resolve the conflict. A
Single Judge in Kshetriya Shri Gandhi
Ashram Magahar v. Ram Samujh Maurya
and others 1990 (61) Indian Factories and
Labour Reports 1 held that where a
workman has himself abandoned his job
his service would be deemed to have been
terminated automatically. It further held
that abandonment of service shall not
constitute retrenchment. In the other
decision namely Afsar Mian v. Labour
Court, Bareilly and others 1991 (63)
Indian Factories and Labour Reports 721
it was held that every termination, for
whatsoever
reason
it
may
be,
is
retrenchment excepting the categories of
termination specified in Section 2(00) of
the Central Act. Similarly in Arun Kumar
Mathur v. Labour Court and another 1993
(66) Indian Factories and Labour Reports
211 Section 2 (00) of the Central Act was
interpreted and it was held that voluntary
abandonment of service would not fall
within the exception of Section 2 (oo) and
removal of the name of a workman from
the muster-roll amounted to retrenchment.

4. We have heard Sri J.N. Tiwari
learned senior counsel for the petitioner
and Sri K.P. Agarwal learned senior
counsel appearing for the respondents.
We would first take up the question of
abandonment. The petitioner's service was
terminated on the ground of absence from
duty in view of clause 15 (ix) of the
Standing Orders which is extracted
below:-

"A
workman
remaining
absent
without leave for a period exceeding 15
http:\\allahabadhighcourt.nic.in
2 All] M/s Kailash Motors, Kanpur V. Presiding Officer, Labour Court, Kanpur and others
551
days at a stretch shall be deemed to have
abandoned the employment."

5. It provided that if a workman
remained absent without leave for a
period exceeding 15 days at a stretch, he
shall be deemed to have abandoned his
employment. Such standing orders were
framed by industrial units after enactment
of
Industrial
Employment
(Standing
Orders)
Act
1946
requiring
the
management
to
define
clearly
the
conditions
of
employment
of
the
workman working in the establishment. In
Uptron India Ltd. V. Shammi Bhan and
another 1988 (79) Indian Factories and
Labour Reports 233 the apex court while
considering
a
case
of
permanent
employee took the view that a clause
providing for automatic termination of
service without there being any provision
for
opportunity
of
hearing
to
the
delinquent employee was invalid. In M/s
Scooters India Ltd. V. M. Mohammad
Yaqub and another 2001 (88) Indian
Factories and Labour Reports 274 the
apex court held that even if the standing
orders provide that if an employee
overstays
leave
then
if
results
in
automatic termination of his service, was
bad if no opportunity of hearing was
afforded. The decisions in Uptron India
Ltd. and M/s Scooters India Ltd. were
decisions rendered by two Judges. Sri J.N.
Tewari has placed reliance on a three
Judges bench decision of the apex court in
Punjab & Sind Bank and others V.
Sakattar Singh 2001 (88) Indian Factories
and Labour Reports 383 wherein the apex
court took the view that if an employee
remained absent from duty without any
leave for sufficiently long period then his
absence from duty would amount to
abandonment
of
service
and
no
opportunity of hearing was required to be
given to such an employee. This too was a
case of permanent employee. But it
appears the earlier decision in Uptron
India Ltd. was not brought to the notice of
the bench. It was decided in favour of the
management relying on the decision in
Syndicate Bank v. General Secretary,
Syndicate Bank Staff Association and
another 2000 (85) Indian Factories and
Labour Reports 807 wherein it was held
that
when
a
bank
employee
unauthorisedly absented himself from
work for the period exceeding the
prescribed time limit of 90 days and the
bank having served a notice upon him
requiring to submit an explanation to join
work within the prescribed period of 30
days, as otherwise he would be deemed to
have retired, was held to be proper and
such action was not in violation of
principles of natural justice. In Syndicate
Bank
(supra)
the
order
of
the
Management was upheld because the
Management by sending a show cause
notice had complied with principles of
natural justice. This was relied in Punjab
& Sind Bank (supra) because the
workman failed to bring on record any
material to show that his absence from
work was justified. In a later decision in
M/s Lakshmi Precision Screws Ltd. v.
Ram Bhagat 2002 (95) Indian Factories
and Labour Reports 43 this decision was
explained and it was held "...factual
context differs in material particulars and
even the bipartite settlement involved
therein was much accommodative in
nature". It was further held that the
doctrine of natural justice is an inbuilt
requirement of standing orders and the
workman was entitled for an opportunity
of hearing before termination of his
service even if the standing orders did not
provide for affording any opportunity of
hearing.
http:\\allahabadhighcourt.nic.in
INDIAN LAW REPORTS ALLAHABAD SERIES [2003
552

6. The apex court thus has settled
that the services of a permanent or regular
workman
cannot
come
to
an end
automatically under the standing orders
framed by the Industrial Units without
complying with principles of natural
justice except where the workman does
not avail the opportunity afforded by the
employer or does not place any material
before the court to prove that his absence
was bona fide, thereby, giving rise to an
inference that even if opportunity would
have been given, he had no explanation to
offer. The services of a permanent or
regular workman, therefore, could not
come to an end under clause 15 (ix) of the
standing order unless the principles of
natural justice was complied. Since the
workman in Kshetriya Shri Gandhi
Ashram
Magahar
(supra)
was
a
permanent workman his service could not
come to an end automatically without
compliance of principles of natural
justice.

7. The next question is whether
removal of name of a workman from
muster-roll amounts to retrenchment. The
word 'retrenchment' has been defined both
in Central and U.P. Act. Section 2 (00) of
the Industrial Disputes Act is extracted
below:-

"retrenchment means the termination
by the employer of the service of a
workman for any reason whatsoever,
otherwise than as a punishment inflicted
by way of disciplinary action, but does
not include-

(a)
voluntary
retirement
of
the
workman; or
(b)
retirement of the workman on
reaching the age of superannuation
if the contract of employment
between the employer and the
workman concerned contains a
stipulation in that behalf; or
(bb) termination of the service of the
workman as a result of the nonrenewal
of
the
contract
of
employment between the employer
and the workman concerned on its
expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the service of a
workman
on
the
ground
of
continued ill-health."

8. The definition in section 2 (s) of
the U.P. Industrial Disputes Act, 1947 is
extracted below:-

"'Retrenchment'
means
the
termination by the employer of the service
of a workman for any reason whatsoever,
otherwise than as punishment inflicted by
way of disciplinary action, but does not
include-

(i) voluntary retirement of the
workmen; or
(ii) retirement of the workmen on
reaching the age of superannuation if the
contract of employment between the
employer
and
workman
concerned
contains a stipulation in that behalf."

9. Both these definitions have come
up for consideration from time to time
and the courts have given wider meaning
to the word 'retrenchment'. It has been
held that except for the circumstances
mentioned
in
the
clauses,
every
termination
of
workman
could
be
retrenchment. In Uptron India Ltd. (supra)
which was a decision from this court, the
apex court held that the latter part of
clause (bb) of section 2 (00) of the
http:\\allahabadhighcourt.nic.in
2 All] CN141 CP Kaushlesh Singh and others V. State of U.P. and another
553
Industrial
Disputes
Act,
namely,
termination in pursuance of a stipulation
to that effect in the contract was confined
to fixed term employment referred in
earlier part. Therefore, in absence of fixed
term contract the termination of service of
a workman or striking off his name from
muster-roll would not be covered in the
exception
to
retrenchment.
The
petitioner's service had been terminated
by the respondents under the standing
orders treating it to be abandonment of
employment. The abandonment of service
has not been excluded from the definition
of
retrenchment.
Therefore,
before
terminating the services of the workman
the petitioner was required to follow the
mandatory procedure of retrenchment.
The removal of the name of workman
from the register and depriving him from
work would amount to retrenchment and
would be bad, as mandatory provisions of
retrenchment had not been followed. For
these reasons we are of the opinion that
the learned Single Judge in Kshetriya Shri
Gandhi Ashram Magahar v. Ram Samujh
Maurya and others 1990 (61) Indian
Factories and Labour Reports 1 did not
lay down the law correctly. The answer to
the question referred in the circumstances
is as under:-

 "Where the name of a permanent or
regular workman is removed from the
muster roll on the ground of abandonment
of
service
it
would
amount
to
retrenchment as contemplated by the
Industrial Disputes Act, 1947 and the U.P.
Industrial Disputes Act, 1947."

Let the records be places before the
learned Single Judge.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2003

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 6166 of 2003

CN 141 CP Kaushlesh Singh and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Smt. Poonam Srivastava

Counsel for the Respondents:
S.C.

U.P. Police Regulation, Regulation 525-
Transfer of constables-from armed police
to civil police-petitioners working as
constables for more than 15 yearstransfer to armed police not properconditions of Regulations not fulfilledhence, transfer order quashed.

Held- Para 5

It is the specific case of the petitioners
that they have been in service as
constables for periods ranging from 15
to 20 years. Specific averments to this
effect have been made in Paragraph 17A of the writ petition which fact has not
been denied by the respondents in their
counter affidavit. Considering the fact
that the Superintendent of Police of the
district has the power to transfer a
constable from Civil Police to the Armed
Police only under Regulation 525 of the
Regulations and the conditions of the
said Regulation have not been fulfilled in
the present case as all the petitioners
are admittedly working as constables for
more than 15 years, they could not have
been transferred from the Civil Police to
the
Armed
Police
under
the
said
Regulation. The impugned order dated
28.1.2003 thus deserves to be quashed.
http:\\allahabadhighcourt.nic.in