Baijnath Shivprasad vs State Industrial Court, M.P. Indore and others

R.C. Shrivastava, J.—The petitioner has, under Article 226 of the Constitution of India, challenged the Industrial Court''s order dated 22-10-1974 passed in Revision No. 284/MPIR/1972.

The petitioner was serving as a security Guard in Rewa depot of the M. P. State Road Transport Corporation. He applied for leave for the period from 26-5-1970 to 30-5-1970, then for extension thereof for the period till 9-6-1970 and again for further extension till 24-6 1970. He did not return to duty on 25-6-1970 and continued to remain absent. The leave was sanctioned, but the sanction thereof was not communicated to the petitioner. On 20-7-1970, the Depot Manager, Rewa, ordered his name to be struck off the roll for the reason that, under Standard Standing Order 8 (e), he had to be deemed to have left the service. The petitioner reported to duty on 5-8-1970. At that time, the order dated 20 7-1970 was served on him and be was not permitted to join. Afterwards, the petitioner applied to the Labour Court u/s 31 (3) of the M. P. Industrial Relations Act, 1960 praying that the Depot Manager''s order dated 20-7-1970 may be set aside and he may be reinstated with full back-wages. The Labour Court allowed the application and granted the reliefs prayed for holding that, the grant of leave having not been communicated to the petitioner and there having also been sufficient cause for his absence from 25-6-1970 the termination of his service was illegal. In revision preferred by the M. P. State Road Transport Corporation against that order of the Labour Court, the Industrial Court, by the impugned order dated 22-10-1974, set aside the Labour Court''s decision and directed that, if the petitioner wanted, his name could be entered as a Badli worker under the latter part of the Standard Standing Order 8 (e).

Clauses (b), (c), (d) and (e) of the Standard Standing Order 8 reads as follows:

(b) An employee who desires to obtain leave of absence shall apply to the manager or the officer authorised by him. It shall be the duty of the manager or the officer to pass orders thereon on two days in a week fixed for the purpose; provided that, if the leave asked for is of an urgent nature; i. e., commences on the date of the application or within three days thereof, orders for the grant or refusal of leave shall be communicated without delay.

(c) The grant of leave or in case it is refused such refusal with reason therefor shall be recorded on the employee''s ticket or service book.

(d) If an employee after proceeding on leave desires an extension of the leave granted, he shall make an application in writing for the same to the manager or the officer authorised by him. A written reply either of the grant or refusal of such extension shall be sent to the employee at the address given by him in the application for extension.

(e) An employee remaining absent beyond the period of leave originally granted or subsequently extended shall be liable to lose his lien on his post and shall be deemed to have left the service from the date of his unauthorised absence unless he returns within ten days of the expiry of the sanctioned leave and/or explains to the satisfaction of the manager or the officer authorised by him, his inability to resume immediately on the expiry of his leave. An employee who so loses his lien but reports for duty within 30 days of the expiry of his leave shall be kept as a badli if he so desires and his name shall be entered in the badli register.

It is quite clear that clause (e) comprises of 3 parts. Under the first part, an employee, who remains absent beyond the period of leave granted or extended, is liable to lose his lien on his post and has to be deemed to have left the service from the date of his unauthorised absence. As soon as an employee fails to return to duly on expiry of the leave granted or extended, the first part comes into play and he has necessarily to be deemed to have left the service from the dale of unauthorised absence. It results in automatic termination of his service. The second part contains a proviso, which is to the effect that the employee can escape the automatic termination only if, within JO days of the expiry of the leave, be returns and explains to the satisfaction of the manager or the officer authorised by him his inability to resume immediately on expiry of the leave or, even without returning to duty, in case he is not in a position to return even within 10 days, explains his absence to his satisfaction. But such a facility can be availed of by him only within 10 days of the expiry of the leave and not thereafter. The last part of the clause entitles the employee to have his name entered in the Badli register, if he returns to duty within 30 days of the expiry of leave and so desires.

The first contention of the learned counsel for the petitioner is that the said clause would have no application in the present case for the reason that the grant of leave was not communicated to the petitioner. The contention has no force. It is beyond the scope of the clause. Although the earlier clauses require the manager or the officer authorised by him to communicate sanction or refusal of the leave to the applicant employee, clause (e) does not make communication of sanction of leave a condition precedent for its operation. Had the Legislature intended to make the communication of sanction of leave a condition precedent, the clause would have been differently worded. It appears that the Legislature, in its wisdom, rightly did not make such a provision for, if it were so made, an employee could manage to avoid communication of sanction of leave and, in turn, operation of clause (e) and continue to remain absent without the risk of losing his service.

The only other contention of the learned counsel for the petitioner is that the Depot Manager''s order dated 20-7-1970 is vitiated for the reason that no opportunity was given to the petitioner by the management to show cause for his non-return to duty on expiry of the leave. Reference was made by him to decisions in The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, , National Engineering Industries Ltd. Vs. Hanuman, , Rameshwar Prasad v. Bhilai Steel Plant 1976 M P L J 87, Sakhrullah Khan Nasrullah Khan v. State Industrial Court Indore and others 1978 M P L J 455 and G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., . These cases are clearly distinguishable from the present one and are of no help to the petitioner as the Standing Orders considered in them were differently worded, lastly, the learned counsel placed reliance on the Industrial Court''s decision in M. P. S. R. T. Corporation v. Jitendra Kumar 1978 M P I & L C 17, in which case the above mentioned clause (e) of the Standard Standing Order 8 was considered. The clause was interpreted in the following words.

From the language of the aforesaid clause, it is clear that it merely imposes a liability on an employee who overstays the sanctioned leave and this liability can be imposed on him by the employer only after giving the employee an opportunity to show cause against the action proposed to be taken against him. It is significant that this clause does not even provide any specific period after the expiry of the sanctioned leave after which the order striking of the name of the employee can be passed. Shri Kale, therefore, submitted that the order can be passed even if the employee overstays the sanctioned leave for a day. He further contended that the termination of services is automatic. Such an interpretation of this clause would completely take away the security of employees in regard to their tenure and the services of an employee of 20 years'' standing can be terminated even if he overstays leave for a day. Such a construction apart from being extremely harsh appears to be preposterous.

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it is clear tome that no order of termination can be passed under the aforesaid clause of the Standard Standing Orders without giving the employee an opportunity to show cause.

We find ourselves unable to agree with the above interpretation. Under the first part of the clause, cessation of service is automatic. It does not contemplate passing of an order of termination of service, which takes place automatically on the happening of the contingency; and, an order, whereby only the name of an employee, who has automatically ceased to be in service, is directed to be struck off the roll cannot be construed as an order terminating the service. The direction to strike off the name of an employee whose service has already automatically come to an end is only an administrative formality. In the case of Notional Engineering Industries Ltd. v. Hanuman (supra), the Standing Order provided that a workman, who did not report for duty within 8 days of the expiry of his leave, lost his lien on the appointment. It was held that there was no difference between loss of lien and loss of appointment and that, under that Standing Order, a workman failing to report for duty within 8 days of the expiry of his leave would lose lien on his appointment and his service would stand automatically terminated on the happening of that contingency. In the case of Buckingham and Carnatic Co. Ltd. (supra), the relevant Standing Order 8 (ii) was in the following terms.

Absent without Leave: Any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the Company''s service without notice thereby terminating his contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.

Any employee leaving the Company''s service in this manner shall have no claim for re-employment in the Mills.

But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowance.

Their Lordships explained it as follows

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 ....................................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.

The latter part of the clause was explained by their Lordships in the following words:

The latter part of this clause, 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. This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory by the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end.

Their Lordships nowhere said that it was for the management to ask for explanation of the defaulting employee and give him an opportunity to explain. All that they meant to say was that the latter part afforded to the defaulting employee an opportunity to offer explanation, which if found satisfactory by the management, would entitle him to remain in service by his absence being converted into leave without pay or dearness allowance. In the case of M. P. S. R. T. Corporation v. Jitendra Kumar (supra), the employee returned after expiry of 10 days of the expiry of leave when his right to offer explanation under second part of the Standard Standing Order 8 (e) had ceased to exist and, in view of the above quoted observations of their Lordships of the Supreme Court in the case of Buckingham Carnatic Co. Ltd. (supra), the doctrines of common law on considerations of equity were not relevant. Other decisions referred to by the learned counsel for the petitioner have no parallel to the present case. The petitioner''s case squarely falls under the last part of clause (e) of the Standard Standing Order 8 and that part makes no provision for giving of any explanation. He could only ask for his name being entered in the Badli register, It follows that the above mentioned contention of the learned counsel for the petitioner is also devoid of substance.