JUDGMENT Yatindra Singh, J.
1. Is abandonment a retrenchment? is a standing order illegal if it provides that : an employee absent without sanctioned leave for 8 days is deemed to have left (abandoned) his service ; but treated to be in service if he subsequently satisfied the employer for his absence? is such a satisfaction of the employer immune from being tested in the labour court? These are some of the questions that are involved in this writ petition. This is how they arise.
FACTS
2. Sri J. P. Sharma (the contesting respondent) was a permanent employee of the Bharat Heavy Electrical Ltd.. Hardwar, (the BHEL for short). The contesting respondent absented himself from 29.4.1981 without obtaining any leave. The BHEL received an application dated 4.4.1981 from the contesting respondent (Annexure-1 to the writ petition) ; requesting them to grant him leave for 15 days with effect from 29.4.1981 to 13.5.1981 for an urgent personal work. The contesting respondent had mentioned his village address in this application. The BHEL sent & letter on 9.5.1981 (Annexure-2 to the writ petition) on that address denying his request, due to exigency of work, and asked him to report for duty. This letter was not served upon the contesting respondent. It came back undelivered with report that the contesting respondent was not at that address. The BHEL again sent a letter dated 10.6.1981 to the contesting respondent informing him that :
* he has not reported for duty ;
* he has absented himself without sanctioned leave from 29.4.1981 ;
* he was, therefore, deemed to have left the employment--terminating his service contract ; and * his name was struck off from the rolls of the company with effect from 29.4.1981 under provisions of clause 8 (1) of the certified standing orders.
3. The contesting respondent was absent from duty as he was arrested on 29.4.1981--he was in Jail. He was released on 15.7.1981. According to him, he thereafter contacted the BHEL (Manager), but was not permitted to enter inside the factory on the ground that his name had already been struck off. The BHEL denies this. According to the BHEL, the contesting respondent never approached them but raised the industrial dispute directly : whether termination of his services on 10.6.1981 was valid or not. The Labour Court by his award dated 31.10.1983 has held that:
* the termination of the service of the contesting respondent under the standing order could not be automatic.
* the termination was illegal, as no disciplinary proceedings were initiated.
(III) Is the Standing Order No. 8 illegal? Does it comply with the principles of natural justice? Does it provide a fair procedure? Could the name of the contesting respondent be struck off without any notice to him.
(IV) Standing order No. 20 (e) provides that absence of leave for more than eight consecutive days to be misconduct. Should the BHEL have taken action under standing order No. 20 (e) instead of standing order No. 8?
(V) Should the employee have approached the BHEL (Manager) after his absence? Could he raise the industrial dispute without satisfying the BHEL (Manager)?
(VI) The proviso to the Standing Order No. 8 provides that the employee may be treated in service. If he satisfies the BHEL (Manager) that he had valid reasons for his absence. is this satisfaction objective or subjective? Could the labour court adjudicate upon it?
(VII) The labour court has held that there are valid reasons for the absence of the contesting respondent? Does it make any difference? Is the BHEL entitled to any relief?
1ST POINT : CONFLICT OF DECISIONS--WHICH ONE TO BE FOLLOWED
5. Sri Tarun Agrawal has cited Buckingham and Carnatic Co. Ltd. v. Venkatiah (the Buckingham Case) and Binriy Ltd. v. Their Workman' in support of his submissions in respect of points No. 2 to 6 Ms. Sirohi has cited D. K. Yadav v. J.M.A. Industries Ltd. (the D. K. Yadav case) : Delhi Cloth and G.M.L. v. Shambhu Nath Muker/ee (the Delhi Cloth Mill Case) ; Uptom India Ltd. v. S. Shammi Bhan (the Uptom India case) : L. Robert D'Souza v. Executive Engineer Southern Railway (the Robert D'Souza case) ; Rolston John v. Central Government Industrial Tribunal-cum-Labour Court (the Rolston John case) in support of her submissions in respect of the same points. The Buckingham case was not considered in these cases. The Buckingham case, the Binny case, the D. K. Yadav case and the Delhi Cloth Mill case are three-Judge decisions, and rest of them are two-Judge decisions, of the Supreme Court. If there was three-Judge decision for one proposition, then there was no difficulty. It is settled that if there are conflicting decisions of the Supreme Court, then the High Court is to follow the decision of the larger bench of the Supreme Court. But if there be a conflict between the two decisions of Supreme Court of equal strength, then which one is to be, followed : the latter one, or the one which appears to state the law accurately.
6. The law on the question--if there be conflicting decisions of equal strength of the Supreme Court--is a debatable one. Two full bench decisions of this Court have taken the view that in case of such a conflict, the latter decision should be followed. A Full Bench of the Karnataka High Court has taken similar view. But a latter Full Bench decision of this Court has taken the view that in case of such a conflict, that decision of the Supreme Court should be followed which appears to state the law accurately and elaborately. Subsequently a Division Bench of this Court, following the full bench has reiterated the same view." The Punjab and Haryana and the Bombay High Court have taken similar view.
7. Three full bench decisions of this Court are of equal strength (three Judges). The third full bench has taken a view contrary to the first two and if the third one had taken into account the first two, then it was the end of the matter. I was bound to follow the third one. But unfortunately the third one has not referred to the first two and a bench of more than three Judges can only resolve this question. I would have referred this case to a larger bench for resolving this conflict, but for the reason that the decisions cited by Ms. Sirohi are distinguishable. The wordings of the standing orders in the cases cited by Ms. Sirohi are different.
2nd POINT : WAS IT A CASE OF A RETRENCHMENT?
DEEMED TO HAVE LEFT-ABANDONMENT
8. The BHEL has taken action against the contesting respondent because he had absented himself for more than 8 consecutive days. This has been dealt in the Standing Order No. 8. This standing order states that in case an employee absents himself for more than 8 consecutive days, then he shall be deemed to have left the services of the project without notice. Does it amount to retrenchment? Does it fall within the exception provided under Section 2(oo) of the industrial Disputes Act. 1947 [the Act for short).
9. Retrenchment has been defined under Section 2(oo) of the Industrial Disputes Act (the Act for short). This has been amended in 1984 and a sub-clause (bb) has been added. According to Sri Tarun Agrawat, the action taken by the BHEL, is not a retrenchment for two reasons. The first reason is that : this case is covered by exception as defined in sub-clause (a) of Section 2(oo) : it is voluntary retirement. The second reason is that there is no positive action from the employer side. Neither retrenchment compensation was required to be paid, nor any retrenchment compensation was paid.
10. The Supreme Court dealt with similar standing order for the first time in the Buckingham case, where the Court observed, the relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has terminated his contract of service. The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service. It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn. Abandonment or relinquishment of service is always a question of intention, and, normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms and conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the first part of Standing Order 8 (ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment.
11. The standing order here is similar. It means that in case, an employee is covered by clause 8 of the BHEL then he has abandoned his employment and is deemed to have terminated his contract of service.
ABANDONMENT--VOLUNTARY RETIREMENT
12. What is the effect of abandonment? What does it mean? Black's Law dictionary defines abandonment to mean ; Voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it. It further says that abandonment of a public office is a species of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquish/Rent through non-user. The abandonment is a kind of voluntary retirement by an employee. It comes within the exception of sub-clause (a) of Section 2(oo) and is not a retrenchment. Another single Judge of this Court has also taken similar view.
No positive action is required from the employer side
13. Let's look at it from different angle. Retrenchment requires some positive action on behalf of the employer. But if nothing is to be done by the employer and the services are automatically terminated in pursuance of a standing order or the action is deemed to be taken by the employee, then there cannot be any retrenchment. The Supreme Court in the Buckingham case, while dealing whether there was any violation of Section 73 of the Employees State insurance Act held, where termination of the employee's services follows automatically either from a contract or from a standing order by virtue of the employee's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so, to such a termination the prohibition contained in Section 73(1) would be inapplicable.
14. The Supreme Court in substance in the Buckingham case held that the effect of such standing order is that there is no positive act on part of the employer and such action is not a termination within the meaning Section 73(1) of the Employee's State Insurance Act. Similarly here, striking off the name of an employee of BHEL in pursuance of Standing Order No. 8 neither requires any positive act on part of the employer, nor does it amount to retrenchment.
Other cases--Action is from the employer side
15. Ms. Sirohi has cited five decisions of the Supreme Court to show that this will amount to retrenchment and it should be so held in this case also. The standing orders in these cases were different. The standing orders in the first three cases (the fourth and the fifth case, namely, the D. K. Yadav case and Delhi Cloth Mill case are dealt separately) provide that : a workman shall lose lien on his appointment (the Rolston John case) ; or the services of a workman are liable to automatic termination (the Uptorn India case) ; or the services are deemed to have been terminated (the Robert D'Souza case). The standing orders or the rule in these cases presume that something is done from the Side of the employer and use the words 'terminate' or 'lose Hen on the post'. They required or assume some action on part of the employer. None of the standing orders in these cases provide that, in such a situation, the workman is deemed to have left the services and terminated his contract of service. The employee in these cases never abandoned or left his services. The standing orders in these cases are different than the standing order in the present case or the Buckingham case.
16. The standing order in D. K. Yadav case uses the words 'deemed to have automatically abandoned' the services and lost his lien on his appointment. This standing order uses the words 'automatically abandoned'. But it appears that the effect of the entire clause was taken by the Supreme Court as if some positive action had been taken by the employer. There is no discussion in the D. K. Yadav's case whether the action was covered by sub-clause (a) of Section 2(oo) of the Act.
17. The standing order in the Delhi Cloth Milt cose5 uses the words 'shall be terminated and shall be treated having left the service'. This standing order uses the words 'treated having left' but again effect of the standing order, in view of the earlier words, 'shall be terminated' is that the employer has taken positive action. It was for this reason, it was held that it would amount to retrenchment. In fact, there is no detailed discussion, as this point did not arise for consideration in this case. The Supreme Court recorded a finding that even under the standing orders, the workman was not absent for more than eight consecutive days.
18. The wordings in the present case and in the Buckingham case are different. The words 'lost his lien on his appointment' ; or 'liable to automatic termination' : or 'deemed to have terminated' ; or 'shall be terminated' are not there. Instead the words : 'deemed to have left' and 'terminating his contract of service' are used. The legal effect of the standing order. In the words of the Supreme Court is that tn case an employee has overstayed or is absent without leave, then the employee is deemed to have left the service and terminated his contract--an action from the employee, rather than of the employer. The effect of the standing order is that no action is taken by the employer but is taken by the employee. This is the reason for difference in the five cases cited by Ms. Sirohi and the present one. In none of these cases the effect of the standing order was that employee had taken action as in the present case. The words used in the cases cited by Ms. Sirohi were not covered by sub-clause (a) of Section 2(oo) of the Act-May be, this was the reason that these cases have not considered if the action was covered by sub-clause (a) of Section 2(oo) of the Act or not. These cases are distinguishable : the present case is covered by the Buckingham case.
19. I would like to point out that Sri Agarwal. has cited one Supreme Court and a Division Bench decision of the M.P. High Court. The words used in the standing order in these cases were 'lose his lien on appointment', yet the Courts in these cases upheld the order on the basis of the Buckingham case. He tried to impress that even on this wording, there cannot be a retrenchment and this amounts to abandonment by the employee. I do not wish to say anything as the words in the standing order of the present case are different. This may be dealt in a suitable case.
3rd POINT : LEGALITY OF THE STANDING ORDER
20. The BHEL has taken action because the contesting respondent absented himself for more than 8 consecutive days ; under the Standing Order No. 8. Is this standing order illegal? Or are the principles of natural justice to be read into it? Can this standing order be struck down on the ground that it does not provide an opportunity to an employee and is against public policy, thus contravening Section 23 of the Contract Act or violating Articles 14 and 16 of the Constitution.
The Buckingham case is applicable
21. The Supreme Court was confronted with this problem for the first time in the Buckingham case, where the Court observed. The latter part of this clause (the relevant standing order), however, provides that the employee can offer an explanation as to his absence and if his explanation is found to be satisfactory by the management, his absence will be converted into leave (without pay or dearness allowance. Now this clause is in substance a proviso to its first part. Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance. The Bombay, the Kerala and the Madras High Courts have taken similar views.
22. The Standing Order No. 8 (quoted in the footnote No. 16) is similar to the standing order in the Buckingham case (quoted in footnote No. 17). It provides that if an employee is absent without any leave, then he is deemed to have left services of the project, terminating his contract of service and his name is struck off. But the proviso contemplates that the employee may subsequently offer explanation to the BHEL (manager). In case BHEL (manager) is satisfied that absence of the employee was on account of sickness or other valid reasons, then the absence is to be converted into leave without pay or with pay if admissible. The employee is treated in service. This was the position in the Buckingham case. The observations of the Supreme Court in the Buckingham case apply to this case.
Other cases--Not applicable
23. Ms. Sirohi has cited five cases (mentioned in paragraph 5 of the Judgment) for the proposition that prior opportunity is necessary and the action by the BHEL is a retrenchment. The question of prior opportunity is dealt in detail in the D. K. Yadav case (discussed in the next two paragraphs) but is not dealt in such detail in other cases. Those cases were mainly decided on the ground that the action is a retrenchment though in some of them the question about prior notice was also mentioned. It is for this reason. I have discussed one aspect of this problem, while discussing the 2nd point "was it a case of retrenchment'. In sub-heading of the 2nd point "No positive action is required from the employer side' (Paras 13 and 14 of the Judgment) and sub-heading 'Other cases--Action is from employer side' (Paragraphs 15 to 18 of the judgment), I have held that effect of the standing orders in these five cases cited by Ms. Sirohi is that some positive action is taken from the employer side ; whereas the effect of the standing order in the present case and the Buckingham case is that action is taken from the employee side. If any adverse action is taken from the employer side, it is obvious that opportunity may be necessary. But if the effect is that action is deemed to be taken from the employee side, then no prior opportunity is required. It is only to confirm, that the action is taken from the side of the employee, that opportunity is provided afterwards ; which is sufficient. The question of prior notice was discussed in detail in the D. K. Yadav case. It is not applicable for another reason. It is proper to discuss it under separate sub-heading.
The D. K. Yadav case--Different Standing Order--Not applicable
24. Ms. Suman Sirohi counsel for the respondent has argued that in the D. K. Yadav case, similar standing order was held to be illegal on the ground that it did not provide an opportunity of hearing ; it should be so held in the present case also. The relevant part of the standing order in the D. K. Yadav case is quoted in footnote 26. The Supreme Court while interpreting this clause of the standing order has held, a reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended, the employee loses his lien on employment unless he returns to duty within eight calendar days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the Manager/Management of his reasons for absence or inability to return to the duty on the expiry of the leave.
25. The employee in the D. K. Yadav case had to offer explanation within 8 calendar days after expiry of the sanctioned leave or in case there was no sanctioned leave then within 8 days. No explanation could be offered after 8 calendar days. It was for this reason and the fact that action was deemed to be from employer side, that the principles of natural Justice were read into it. This is neither the case here, nor in the Buckingham case. Here the employee can offer his explanation even after expiry of 8 days and the action is deemed to be from employee side. The standing order in the D. K. Yadav case is different than the one in the Buckingham case or the present case. The observations in the Buckingham case, rather than that of the D. K. Yadav case, apply to the facts of this case. But, even apart from the Buckingham case, is an opportunity afterwards to confirm the action sufficient? Let's discuss it in the next three sub-headings.
Fairness--Theory of Everything-TOE
26. The aim of any jurisprudence is to achieve fairness. I am not interpreting a statute. It is a standing order--a contract between employer and employee. But even so far as Statutes are concerned, many have, said in their own way. The Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. The test today of whether to supplement statutory procedure is no longer whether the statutory procedure alone could result in manifest unfairness. The preferable view is that fairness tou Court (French words meaning without nothing added or simply) must be attained............. Under either test factors........likely to be relevant (are): the comprehensiveness of the Code, the degree of deviation from the statutory procedure required, and the overall fairness of the procedures to the individual concerned. If it can be demonstrated ............that the............ procedure ............ followed. ........... has represented a genuine attempt, reasonable in all the circumstances, ............ It is unlikely the Court will intervene through judicial review and to strike (it) down.
27. The Courts have evolved different principles to ensure fairness. May it be : the promissory estoppels, or the legitimate expectation, or the principles of the natural justice, or the Wednesbury principle, or any other ground (bad faith, irrelevant consideration, acting under dictation etc.) on which judicial review is permissible. These are different tools to ensure that the proceeding and the end result is fair. These tools, or principles will merge (if not already) into one--fairness. The World of Physics has not found its Theory of Everything (TOE) in this century but the Jurisprudence has already found its TOE in fairness. It is on this yardstick that action is to be judged.
Natural justice--Not a rule of thumb
28. Fairness, and not the blind application of. the principles of natural justice, is the end result. It is for this reason that Lord Denning remarked, it is not possible to lay down rigid rules as to when the principles of natural justice are to apply ; nor as to their scope and their extent. Everything depends on the subject-matter. Halsbury's laws of England 4th edition, Volume 1 (para 74) states, the presumption in favour of importing the rule (Audi alteram partem) may be partly or wholly displaced............where it is impracticable to give prior notice or an opportunity to be heard ; or where an adequate substitute for a prior hearing is available. So does the Garner's Administrative Law (page 256). The question that needs to be considered is not the very general one 'what does audi alteram partem require?, but rather 'what in particular situations may audi alteram partem be held to require? To predict the operation of the audi alteram partem principle requires judgment of context rather than mere knowledge of 'black-letter' rules.
29. The proposition, that the principles of natural justice are not carved on stone but are flexible. Is part of our jurisprudence too. The applicability of the principles of natural justice is not a rule of thumb or a strait jacket formula as an abstract proposition of law. (They) are not rigid rules............(but) are flexible and their application depends upon the setting. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case.
30. To sum up the relevant question is, But, is it fair' if the procedure is fair, the end result is fair ; then it is not only sufficient compliance of the principles of natural justice but is an end of the matter.
The procedure in the standing order is fair
31. The standing order in the Buckingham case and the present case do provide for an opportunity of hearing--may be after the tentative decision. Prior opportunity is not given as the employee in such a situation is not available. In the present case, a notice was sent to the employee on the address given by him, but it came back un-delivered. The address given by the employee was wrong. It was of the village whereas in fact he was in jail. How could the employer serve the notice on the employee? One has to take pragmatic view of the matter. The-Standing Order No. 8 of the BHEL provides a fair procedure. This is in view of the following reasons. Factors ;
(a) The observations of the Supreme Court in the Buckingham, case where there was similar standing order.
(b) There are no rigid rules of principle of natural justice.
(c) The purpose and context for which the standing order is framed (the action is taken against an employee who is absent without information and may be without address as in the present case).
(d) The action is deemed to be from the employee side rather than the employer and subsequent opportunity is to confirm this action of employee.
(e) The explanation could be offered even after 8 days, at any time when the employee came back from his absence.
(f) If employee's absence was on account of sickness or other valid reasons, then the BHEL has to convert absence into leave without pay or with pay if due and to treat the employee in service.
The Standing Order No. 8 complies with the principles of Natural Justice. It is neither against the public policy so as to violate Section 23 of the Contract Act. nor is violative of Articles 14 and 16 of the Constitution. It cannot be struck down on this ground.
4th POINT : WAS IT A MISCONDUCT?
32. The Standing Order No. 20 provides for acts and omissions, which constitute misconduct. Its sub-clause (e) provides that the absence of leave for more than 8 consecutive days, is an act of misconduct. The management had two options one under Standing Order No. 8 and other under Standing Order No. 20 (e). In case any action under Standing Order 20 (e) is taken, then admittedly inquiry had to be conducted. Ms. Sirohi has argued that there being two procedures, the BHEL should have proceeded under the standing order which was more favourable to the employee, i.e., under the Standing Order 20 (e), rather than the Standing Order No. 8.
33. The point raised by Ms. Sirohi was also dealt in the Buckingham case. The Supreme Court has held : it is (rue that absence without leave for eight consecutive days is also treated as misconduct under Clause 13 (f) of the standing orders............. (A)bsence without leave for more than eight consecutive days can give rise to the termination of the contract oj service either under Standing Order No. 8 (ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant standing order. The fact that the same conduct is dealt with in two different standing orders cannot affect the applicability of S.O. 8 (ii) to the present case. It is not as if the appellant is bound to treat Venktiah's (employee) absence as constituting misconduct under S.O. 13 (f) and proceed to hold an enquiry against him before terminating his services. Dismissal for misconduct as defined under S.O. 13 may perhaps have different and more serious consequences from the termination of service resulting from S.O. 8 (ii). However, that may be, if S.O. 8 (ii) is applicable, it would be no answer to the appellant's case under S.O. 8 (it) to say that S.O. 13 (f) is attracted.2
34. These observations of the Buckingham case apply in the present case. In the words of the Supreme Court if the same act is dealt in two different standing orders, namely. 20 (e) and 8, then this could not affect the applicability of the Standing Order No. 8 if it applied. The BHEL has- taken action under Standing Order No. 8. The action can be invalidated on the ground that action ought to have been taken under Standing Order No. 20 (e).
5th POINT : EMPLOYEE-EXPLANATION--BHEL (MANAGER)
35. The contesting respondent was absent from duty from 29.4.1981. He had sent an application dated 4.5.1981 for leave. The contesting respondent, in this application, never informed that he was in Jail. On the contrary, in his application he had given his village address. The BHEL rejected it and asked the workman to join the duty immediately. This letter was sent by BHEL on the village address given by the contesting respondent. According to the contesting respondent, he had sent two more applications on 30.5.1981. The labour court held, there is no evidence before me (the labour court) to prove that the workman had sent applications for leave on 13.5.81 or 1.6.81. This read with the admitted facts that the workman did not attend duty from 29.4.81 till much beyond 10.6.81 and that his leave application dated 4.5.81 was not sanctioned, must lead to the conclusion that he was absent from 29.4.81, unauthorisedly.'
36. The contesting respondent was in jail till 15.7.1980. According to him, after his release, he went to the BHEL who refused to permit him to enter inside the factory on the ground that his name had been struck off. This is denied by the BHEL. Admittedly, he never sent any application thereafter but raised an industrial dispute. Under the standing order, the contesting respondent should have offered his explanation to the BHEL (Manager). If his explanation was valid, then the BHEL was to convert his absence into leave without pay or with pay if due and were to treat him in service. The labour court has not gone into the question if the employee had offered any explanation to the BHEL (Manager) or not. According to the labour court, it was immaterial if workman did not come out himself with explanation before employer for his absence. This reasoning of the labour court is incorrect. The standing order is a binding contract between the parties. The contesting respondent under Standing Order No. 8 ought to have offered his explanation to the BHEL (Manager) and it was for them to consider and take decision on the same. The award is illegal on this account.
6th POINT : DISCRETION--OBJECTIVE OR SUBJECTIVE
37. Is the discretion of the BHEL (Manager) absolute? Is it subjective in the sense that the decision under the standing order cannot be challenged before the labour court. Under the standing order, the BHEL (Manager) has the discretion to decide this question. This discretion cannot be exercised arbitrarily. The discretion has to be based on objective considerations--it is discretion of a reasonable man. It is objective and can be tested by the labour court.
7th POINT : RELIEF--IF ANY
38. The Standing Order No. 8 of the BHEL is valid. The striking off the name of the contesting respondent is not retrenchment, yet the BHEL had to treat the contesting respondent in service : if he had offered satisfactory explanation to the BHEL (Manager) ; or if so found by the labour court. The labour court could have gone into this question only if the contesting respondent had first approached the BHEL (Manager). According to the labour court, this question is immaterial, which I have held to be wrong. Admittedly the contesting respondent never sent any letter after he was released from jail and his earlier letters dated 13.5.1981 and 1.6.1981 have been disbelieved by the labour court. Should the matter be sent back on the question--Whether the contesting respondent had approached the BHEL (Manager) or not. It is appropriate at this stage? In view of this I think it would be proper to decide this case finally and this litigation.
39. The labour court had held that the contesting respondent had valid reason for his absence. The labour court had jurisdiction to go into this question provided the contesting respondent first approached the BHEL (Manager). The labour court has also disbelieved the alleged applications sent by the contesting respondent. Sri Tarun Agarwal, learned counsel for the petitioner does not question the finding of the labour court but says, had the contesting respondent approached the BHEL (Manager) this litigation may not have arisen. I think, in view of this, it would be just not to quash the order of reinstatement passed by the labour court but to quash only that part of the award where back wages have been awarded to the contesting respondent. The BHEL had no justification for not reinstating the contesting respondent after it was held that the contesting respondent had valid reason for his absence.
CONCLUSION
40. The Standing Order No. 8 of the BHEL, providing that an employee within its ambit is deemed to have left its services, is valid. In case the name of such an employee is struck off, then it does not amount to retrenchment. Such an employee has first to satisfy the BHEL (Manager) about valid reasons for his absence but the satisfaction of the Manager is that of a reasonable man. It can be tested before a labour court. In view of the fact that : the labour court has held that there were valid reasons for the absence of the employee' but as the employee had not approached the management (there is no finding); and his applications dated 13.5.1981 and 1.6.1981 were disbelieved, the writ petition is partly allowed. The award of the labour court dated 31.10.1983 awarding back wages to the contesting respondent is quashed.
The contesting respondent shall be entitled to his wages and consequential benefits from the date of the award, namely. 31.10.1983 after adjusting the amount already paid to him in pursuance of the interim orders passed in the writ petition.