Full Judgment Text
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CASE NO.:
Appeal (civil) 5213 of 2006
PETITIONER:
New India Assurance Co. Ltd
RESPONDENT:
Vipin Behari Lal Srivastava
DATE OF JUDGMENT: 21/02/2008
BENCH:
DR. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
JUDGMENT
CIVIL APPEAL NO.5213 OF 2006
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a
learned Single Judge of the Allahabad High Court dismissing
the writ petition filed by the appellant questioning the
correctness of the Award dated 28.1.1998 passed in Industrial
Dispute No. 111 of 1987 passed by the Presiding Officer,
Central Government Industrial Tribunal-cum-Labour Court,
Kanpur, Uttar Pradesh (in short, ’the Tribunal’). The award
was passed in the reference made by the Central Government,
Ministry of Labour, referring the following dispute for
adjudication of the Tribunal:
"Whether the action of the management of New
India Assurance Company Limited in removing Sri Vipin
Behari Lal Srivastava, typist, Allahabad from service
w.e.f. 15.6.1985, is legal and justified? If not to what
relief the concerned workman is entitled?"
2. The controversy lies within a very narrow compass. The
respondent was working as a permanent typist at the
Allahabad branch of the appellant-New India Assurance Co.
Ltd. Alleging that he had unauthorizedly remained absent for
more than 600 days, a charge sheet was issued. An Enquiry
Officer was appointed and after completion of enquiry and on
consideration of the enquiry report, the respondent was
removed from service by order dated 15.6.1985. Thereafter, a
dispute was raised and the reference was made, as noted
above. The Tribunal came to hold that during the period in
question, i.e., 25.9.1982 to 5.6.1984, the respondent was
suffering from Tuberculosis and he had applied for medical
leave and since the management did not pass any order on his
leave applications, the concerned workman cannot be held
responsible and, therefore, he was not absent unauthorizedly
from duty. Accordingly, the order of removal was set aside
and order was passed directing reinstatement with full back
wages and consequential benefits including continuity of
service. The same was challenged before the High Court. By
the impugned order, the High Court observed that though the
respondent had remained absent, his absence with leave stood
condoned by virtue of the letter dated 3.8.1984 issued by the
Branch Manager of the appellant Company by which the
respondent was called back to work. It was further observed
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that the Tribunal had also recorded that the management did
not pass any order on the leave application and, therefore, it
had to be implied that leave had been sanctioned. But it was
noted that by virtue of a stay order passed in a writ petition,
the proceedings before the Tribunal had remained stayed for
about six years and, therefore, the respondent was not entitled
to back wages for the whole period, but was entitled from
28.1.1998 i.e. from the date of the award. A Letters Patent
Appeal was filed before the Division Bench of the High Court
which dismissed holding the same to be not maintainable.
3. In the present appeal, the order passed by the learned
Single Judge has been questioned.
4. Learned counsel for the appellant submitted that there
was no condonation of the absence of the leave as has been
noted by the Tribunal and the High Court; on the contrary, in
the letter in question it was categorically stated that the prayer
for leave even without pay cannot be granted. Therefore, he
was directed to join the duty immediately and failing which it
was to be presumed that he was not interested in the job and
it shall also be presumed that he had abandoned the job. It
was also pointed out that with a view to test the correctness of
the stand that respondent was ailing, the Deputy Medical
Officer was sent to the house of the respondent along with a
senior officer but the respondent was found absent and it was
gathered that he was hale and healthy. With reference to the
relevant Rules, it is submitted that there was no scope for
claiming leave as a matter of right and sick leave can only be
granted on certain conditions being fulfilled which were not
fulfilled by the respondent.
5. In response, learned counsel for the respondent
submitted that the respondent was suffering from
Tuberculosis for which there is ample material. The
authorities insisted on a certificate from the Chief Medical
Officer but did not write directly to the said Officer though
requested by the respondent. Several applications for leave
were made but they were not dealt with by the appellant and,
therefore, the Tribunal and the High Court were justified in
directing reinstatement.
6. The main basis for conclusion of the High Court for
assuming condonation of the absence is the letter dated
3.8.1984. The same needs to be quoted in full. It reads as
follows:
"THE NEW INDIA ASSURANCE CO. LTD.
REGISTERED
3rd August 84
Mr. V.B.L. Srivastava
Sr. No. 6074
51, Talab Nawal Rai
New Bairadhana
Allahabad
Dear Sir,
This is with reference to your letter of 31st ultimo. You are
aware that no leave is due & we cannot grant you any further
leave even without pay. You are, therefore, required to join
your duty immediately, failing which we shall presume that
you are no more interested in the job & we shall also presume
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that you have abandoned the job.
Thanking you,
Yours faithfully,
Sd/-
Sr. Divisional Manager"
7. A bare look at it shows that there was no condonation of
the absence without leave as held by the High Court. On the
contrary, it was clearly indicated that no leave was due and
even leave without pay cannot be granted. Therefore, direction
was given to join back immediately failing which certain
presumptions were to be drawn as noted above.
8. The case of the appellant was really not of abandonment
but of an unauthorized absence.
9. The Rules governing "leave" read as follows
"(1) General Principles Governing Grant of Leave:
The following general principle shall govern the grant of
leave to the employees:
(a) Leave cannot be claimed as a matter of right.
(b) Leave shall be availed of only after sanction by
the competent authority, but one day’s casual leave
may be availed of without prior sanction in case of
unforeseen emergency, provided the head of the
office is promptly advised of the circumstances
under which prior sanction could not be obtained\005"
(4) Sick Leave:
(c) Sick Leave can be granted to an employee only
on production of a medical certificate from a
Registered Medical Practitioner, which term would
include Homeopathic, Ayurvedic and Unani doctor
also provided they are registered medical
practitioners.
(d) The certificate should state as clearly as
possible the diagnosis and probable duration of
treatment \005."
10. As noted above, sick leave can be granted only on the
production of a medical certificate from a Registered Medical
Practitioner clearly stating as far as possible the diagnosis and
probable duration of treatment. There was no such indication
in the certificates purported to have been furnished by the
respondent. It is to be noted that the respondent even did not
join after receipt of the letter dated 3.8.1994. The charges
against the respondent, inter alia, were as follows:
"(i) willful insubordination and disobedience of lawful
and reasonable orders of his superiors
(ii) absence without leave, without sufficient grounds or
proper or satisfactory explanation
(iii) absence from his appointed place of work without
permission or sufficient cause"
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11. In Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. &
Ors. [(2005) 5 SCC 337] this Court, inter alia, observed as
follows:
"14. What fell for consideration before the Industrial
Tribunal was the interpretation and/or applicability of
the said settlement. The Industrial Tribunal committed
an error of record insofar as it proceeded on the basis
that the said settlement had not been proved. The
settlement being an admitted document should have
been considered in its proper perspective by the
Industrial Tribunal. Clause (2) of the said settlement is a
complete code by itself. It lays down a complete
machinery as to how and in what manner the employer
can arrive at a satisfaction that the workman has no
intention to join his duties. A bare perusal of the said
settlement clearly shows that it is for the employee
concerned to submit a proper application for leave. It is
not in dispute that after the period of leave came to an
end in June 1983, the workman did not report back for
duties. He also did not submit any application for grant
of further leave on medical ground or otherwise. It is in
that situation the memorandum dated 2.11.1983 was
issued and he was asked to join his duties. It is
furthermore not in dispute that despite receipt of the said
memorandum, the workman did not join duties pursuant
whereto he was served with a notice to show cause dated
31.12.1982. He was required to resume his duties by
15.1.1984. The Bank received a telegram on 17.1.1984
and only about a month thereafter he filed an application
for grant of leave on medical ground. It is not the case of
the workman that any leave on medical ground or
otherwise was due to him. Opportunities after
opportunities indisputably had been granted to the
workman to explain his position but he chose not to do
so except filing applications for grant of medical leave
and that too without annexing proper medical
certificates.
18. Mere sending of an application for grant of leave
much after the period of leave was over as also the date
of resuming duties cannot be said to be a bona fide act
on the part of the workman. The Bank, as noticed
hereinbefore, in response to the lawyer’s notice
categorically stated that the workman had been carrying
on some business elsewhere.
19. We cannot accept the submission of Mr. Mathur
that only because on a later date an application for grant
of medical leave was filed, the same ipso facto would put
an embargo on the exercise of the jurisdiction of the
Bank from invoking clause 2 of the bipartite settlement.
20. It may be true that in a case of this nature, the
principles of natural justice were required to be complied
with the same would not mean that a full-fledged
departmental proceeding was required to be initiated. A
limited enquiry as to whether the employee concerned
had sufficient explanation for not reporting to duties after
the period of leave had expired or failure on his part on
being asked so to do, in our considered view, amounts to
sufficient compliance of the requirements of the
principles of natural justice."
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12. In view of the factual position, when tested on the
touchstone of the principles of law and governing rules, the
inevitable conclusion is that the impugned order of the High
Court passed by the learned Single Judge dismissing the writ
petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006
cannot be sustained and is set aside. The order passed by the
departmental authorities directing removal of the respondent
from service is maintained.
13. The Appeal is allowed without any order as to costs.