AI Structured Summary
Not yet generated for this judgment
Judgment
S.S. Sudhalkar, J.—This writ petition is filed by the employer challenging the award of the Labour Court dated 5.1.1983 (copy Annexure P/3) vide which respondent No. 2 was ordered to be reinstated in service with continuity thereof and full back wages.
Respondent No. 3 was working with the petitioner. He joined service on April 19, 1976. He proceeded on leave from November 11, 1980 to November, 1980. It is contended that during this period he fell ill and sent medical certificate alongwith application for extension of leave. It is contended that the respondent was suffering from jaundice and the certificates regarding the same are at Ex. R3/2 and R3/3. It is fur-ther.contended by him that on 19.1.1981 when he came back to resume his duties with fitness certificate, the petitioner refused to provide the job and in this way terminated the service of the respondent.
The case of the petitioner is that respondent was working on permanent post. He proceeded on leave duly sanctioned from 11.11.1980 to 18.11.1980. He, thereafter, requested for extension of leave vide application dated 17.11.1980 duly supported by the medical certificate. The doctor had recommended him rest for three w&eks and accordingly he was sanctioned the said leave. Vide letter dated 24.12.1980 he had sought extension of leave by one week. The letter was not accompanied by any medical certificate and as such no leave was sanctioned. He did not report for duty on 1.1.1981. After waiting upto 12.1.1981, he was treated to have abandoned his service and his services were terminated. The termination of service was, according to the petitioner, in terms of the Standing Orders. The Standing Orders relating to leave and absence are quoted in the petition. The relevant clause is Clause 14(iii) and (iv). They are as under :-
"Clause 14(iii): In that event of a workman desiring extension of the originally sanctioned leave or a subsequently extended and sanctioned leave, he shall make an application in writing to the manager specifically stating the reasons warranting such an extension duly supported by the proof thereof and submit sufficiently in advance of the expiry of the leave allowed. The manager or any other authorised person on his behalf shall as soon as possible on receipt of such application inform the workman on the address given by the workman whether the extension applied for has been sanctioned or refused. Reply shall be sent without delay under a certificate of posting.
If a workman desires a telegraphic reply by the management he shall sent reply paid telegram."
(iv) If a workman remain absent without sanctioned leave or beyond the period of leave originally sanctioned or subsequently extended, he shall lose lien on his appointment unless (a) he returns within 10 (ten) days of commencemnt of absence of expiry of the leave, and (b) explains to the satisfaction of the manager the reasons of his absence or his inability to return on the expiry of leave as the case may be. He shall be deemed to have left the services of the company of his own accord with effect from the date on which he was return to his duties with the company and his services shall stand automatically terminated.
Counsel for the petitioner has relied on the Judgment of the Supreme Court in the case of The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, . He has relied on the part of the judgment in which it has been held that the standing or-ders are of binding in nature and doctrines of common taw or considerations of equity are not applicable.
Leamed counsel for the respondents has argued that no notice was given to the respondent even if the petitioner wanted to act on the standing orders. He has referred to the judgment in the case of Uptron India Limited Vs. Shammi Bhan and Another, : In para 20 of the judgment it has been held as under :-
"There is another angle of looking at the problem. Clause 17(g) which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to auto matic termination." This provision, therefore, confers a discretion upon the management to ter minate or not to terminate the services of an em ployee who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether my medical certifi cate, was sent if he had, in the meantime, fallen ill ? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the serv ices are again questions which have an answer in herent in the provision itself, gamely, that the em ployee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natu ral justice, which have to be read into the offend ing clause, must be complied with and the em ployee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave."
Learned counsel for the respondent has also relied on the case of D.K. Yadav Vs. J.M.A. Industries Ltd., In paras 14 and 15 of the judgment it has been held as under :-
"14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In DTC v. DTC Mazdoor Congress the Constitution Bench, per majority, held that termination of the service of a workman giving one month''s notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employee was set aside.
In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant''s plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and pn all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to. sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management and power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the princi-ples.of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When soread the impugned action is vio-lative of the principles of natural justice."
Counsel for the petitioner also argued that when the respondent was terminated in accordance with the Standing Orders, he cannot invoke the jurisdiction of the Labour Court and Industrial Disputes Act. Counsel for the respondent argued that the respondent had, during the period of his absence, sent medical certificates showing his illness and, therefore, this is a fit case in which the respondent should have been given a notice to show cause why action in accordance with the Standing Orders should not be taken against him and if he was given notice, he would have explained his position; this being not done the action of the petitioner terminating the service of the respondent only because of the Standing Orders is not legal.
In the Standing Orders of the petitioner quoted above, there is a deeming clause that the workman would be deemed to have left the service of the com pany of his own accord. It is argued that this case is, therefore, slightly different from the case of Uptron In dia Ltd. v. Sham mi Bhan and another (supra). In that case the distinction was drawn holding that "the serv ices are liable to automatic termination" did not mean that the service will stand automatically terminated. In the case of M/s. Scooters India Ltd. v. M. Mohammad Vaqub and another 2001(1) SCT 212 (SC) : AIR 2000 SCW 4117 it has been held that the Standing Order providing for such automatic termination without affording opportunity of hearing to the employee is bad. ''
In view of the above principle, Standing Orders of the petitioner will not come to its rescue in the present case. It is not shown that any notice was issued before termination of service of the respondent. Principles of natural justice require to be complied with. As no notice was given the principles are not complied with. In this case the respondent had sent medical certificate for a particular period. Had he been given notice to explain his absence, he could have showed cause for the same. This being the position, the order of the Tribunal deserves no interference.
In view of the above reasons, this petition is dismissed.
Writ petition dismissed.