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PETITIONER: NATIONAL ENGINEERING INDUSTRIES LTD.

       Vs.

RESPONDENT: HANUMAN

DATE OF JUDGMENT: 25/07/1967

BENCH: WANCHOO, K.N. (CJ) BENCH: WANCHOO, K.N. (CJ) MITTER, G.K.

CITATION:  1968 AIR   33            1968 SCR  (1)  54

ACT: Industrial  Disputes  Act,  1947 (14 of 1947),  ss.  33  and 33A--Standing Orders providing for automatic termination  of services for over-staying leave beyond certain period-S.  33 whether   applies   when  services   terminated   in   above manner--Application under s.  33A, whether lies. Constitution  of  India,  Art, 136-Appeal by  special  leave against order of Labour Court--Supreme Court will  interfere with  finding of fact by quasi-judicial Tribunal  only  when they are perverse.

HEADNOTE: The  respondent was a workman in the appellant company.   On the  ground  of over-staying his leave for more  than  eight days  the company, relying on the relevant provision in  the Standing  Orders,  treated  his  services  as  having   teen automatically  terminated.  The workman made an  application under  s.  33A  of the Industrial Disputes  Act  before  the Labour  Court.  The respondent’s version that he  had  asked for  extension of leave on medical grounds and had  sent  an application  through  another workman was  believed  by  the Labour  Court.  That court therefore held that there was  no automatic termination of the respondent’s services and  that he  was entitled to make an application under s.  33A.   The company  appealed  to  this  Court under  Art.  136  of  the Constitution. HELD:(i)  Ordinarily  this Court is slow  to  interfere with  findings of fact recorded by quasi-judicial  Tribunals in  an appeal under Art. 136 of the Constitution.  But  this Court  does  so if it is shown, ex facie, that  the  finding recorded  is perverse.  In the present case  the  respondent had  been  totally  unable by evidence produced  by  him  to establish that his absence beyond the period of leave origi- nally granted was due to continued illness and therefore the finding  of the Labour Court in his favour in  this  respect was perverse.  [56D-E; 57C] (ii) Standing Order (i) in Section G on which the appellant company  relied  in  inartistically  worded,  but  when  the standing order provides that a workman will lose his lien on his  appointment  in case he does not join his  duty  within eight  days of the expiry of his leave, it  obviously  means that  his  services  are  automatically  terminated  on  the

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happening of the contingency. [57G] Where a workman’s service terminates automatically under the standing  order s. 33 would not apply and so an  application under  s.  33A  would not be maintainable, as  there  is  no question in such a case of the contravention of s. 33 of the Act. [58C-D] Chandri  Bai  Uma v. The Elephant Oil Mills Ltd.,  [1951]  1 L.L.J.  370 and Sahajan v. A. Firpo Company Ltd., [1953]  II L.L.J. 686, approved. Raghunath  Enamels  Ltd., v. Sri Surendra  Singh,  [1953]  I L.L.J. 261, disapproved. Yeshwant  Sitaram  Rane v. Goodlass Wall Limited,  [1954]  I L.L.J. 505 and Kanaksing Ramsing v. Narmada Valley  Chemical Industries Limited, [1956] I L.L.J. 377, distinguished. Buckingham  and Carnatic Company Limited, v. Venkatayya  and Anr. [1963] II L.L.J. 638[1964] 4 S.C.R. 265, applied. 55

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 549 of 1967. Appeal  by special leave from the Award dated  December  23, 1966 of the Labour Court, Rajasthan, Jaipur in Complaint No. 6 of 1965. Niren  De, AdI.  Solicitor--General, and B.  P.  Maheshwari, for the appellant. M.K. Ramamurthi, Shyamala Pappu, R. Nagaratnam and Vineet Kumar, for the respondent. The Judgment of the Court was delivered by Wanchoo,  C.J.-This is an appeal by special leave in an  in- dustrial  matter and arises in the following  circumstances. Respondent Hanuman was in the service of the appellant.   He took  leave  from  3rd  to  9th  April,  1965  and  in  that connection a certificate from the Employees’ State Insurance Dispensary  (hereinafter referred to as the Dispensary)  was produced.  He should have joined on 10th April, 1965. but he did  not  do  so.  His case was that  he  had  sent  another certificate  from  the  Dispensary on  April  10,  1965  for further leave through one Prahlad Singh.  Thereafter he  was given  a  fitness  certificate on April  19,  1965  and  was required to join on 20th April, 1.965. He appeared to report for duty on 20th April, 1965, but he was not allowed to join on  the  ground that his service stood  terminated.   As  an industrial  matter was pending at the time in which  he  was concerned as a workman, he made an application under s. 33-A of the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to as the Act) for reinstatement. The case of the appellant on the other hand was that Hanuman respondent was on leave from April 3 to April 9, 1965 on the basis of the certificate from the Dispensary.  The appellant however   contended   that  no  certificate   was   received thereafter  on  April  10, 1965  through  Prahlad  Singh  as alleged  by  Hanuman.   Further Hanuman did  not  appear  to rejoin  till April 20, 1965.  Consequently in view  of  s.o. (i)  in Section G of the Certified Standing  Orders  Hanuman lost his lien on his appointment.  The appellant’s case thus was  that Hanuman’s service stood  terminated  automatically under the Standing Orders and no order as such was passed by the appellant terminating his service.  In consequence there was  no  contravention  of s. 33 of the  Act  and  therefore Hanuman’s application under s. 33-A was not maintainable. Two questions thus arose before the labour court.  The first was whether Hanuman continued ill from April 10 to April 19. 1965  and whether he had sent the certificate in support  of

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that illness from the Dispensary, and the second was whether the application was maintainable under s. 33-A of the Act in view of the 56 alleged automatic termination of Hanuman’s service under the Standing  Orders.  On the first point the labour court  held that  Hanuman had continued ill from April 10 to  April  19, 1965  and that he had sent the certificate  through  Prahlad Singh on April 10, 1965.  On the second question the  labour court seems to have held that the service of Hanuman was not automatically  terminated under the Standing Orders  and  in any case the appellant should have taken his explanation and so  there was denial of natural justice for the  service  of Hanuman  was  terminated without any  enquiry.   The  labour court therefore decided in favour of Hanuman and ordered his reinstatement with all back wages. In the present appeal, the appellant raises two points.   It is first contended that the finding of the labour court that Hanuman  continued ill from April 10 to April. 19, 1965  was perverse.   Secondly,  it is contended that the  service  of Hanuman  stood automatically terminated under  the  relevant standing  order;  as such s. 33 was not contravened  and  no application under s. 33-A lay. Ordinarily this Court is slow to interfere with findings  of fact recorded by quasi judicial tribunals in an appeal under Article 136 of the Constitution.  But this Court does so  if it is shown ex facie, that the finding recorded is perverse. It  does  appear to us in this case that  the  finding  that Hanuman  continued  ill from April 10 to April 19,  1965  is perverse.   It is true that Hanuman stated that he had  sent the  certificate  through  Prahlad on April  10,  1965.   In support  of his statement he examined Prahlad Singh and  Dr. Girraj  Prasad  who was in-charge of the Dispensary  at  the time when evidence was given in 1966.  Prahlad Singh did not support  Hanuman and was treated as hostile.  Prahlad  Singh had  given  an  affidavit in favour of Hanuman  but  in  his statement  before the labour court he said that he  did  not remember the date when Hanuman fell ill and did not know  on what date Hanuman had given him the certificate.  It may  be mentioned  that  the  first  medical  certificate  was  sent through Prahlad Singh on April 3, 1965, but Prahlad  Singh’s evidence does not prove, that he gave the second certificate to  the foreman of the appellant on April 10, 1965.  As  for Dr.   Girraj  Prasad  he  seems  to  have  stated   in   his examination-in-chief  that Hanuman was under  his  treatment from  April  3  to April 19, 1965 and was  given  a  fitness certificate  to  join  from  April  20,  1965.   In   cross- examination, however, he admitted that he had not issued the three  certificates dated April 3, 10 and 19, 1965 and  that he  had  not  examined Hanuman on  these  three  dates.   He further  stated that he had given his evidence on the  basis of  the  record of the Dispensary.  But it  seems  that  the record of the dispensary was not before him when he gave the evidence, for he admitted that 57 he had not been shown either the original certificate or the copies thereof.  His evidence therefore was worthless in  so far  as corroboration of Hanuman’s statement was  concerned. The  doctor  who actually gave the  certificates  was  never examined  and  no  reason  was given why  he  could  not  be examined.    It   is  also  remarkable  that   the   fitness certificate which, according to Hanuman,   was taken by  him when he appeared on April 20, 1965 to join his duty has  not been  produced.  It is not Hanuman’s case that he had  given that fitness certificate to the appellant and the  appellant

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had suppressed that also.  In the circumstances, it seems to us  that  the  finding  of the  labour  court  that  Hanuman continued  ill from April 10 to April 19, 1965 is  perverse, for both the witnesses produced by Hanuman in support of his case  had not corroborated his statement.  There is  nothing on the record besides the mere statement of Hanuman to prove that he continued ill from April 10 to April 19, 1965.  Even the fitness certificate was never produced before the labour court  and  it seems that the record of the  dispensary  was also  never  produced before the labour court;  further  Dr. Girraj  Prasad though he stated that he was giving  evidence on  the  basis of the record, did not refer either.  to  the original  certificates or the copies thereof  before  giving his  evidence.  In these circumstances we cannot accept  the finding  of  the  labour court to the  effect  that  Hanuman continued ill from April 10 to April 19, 1965 in the face of the  appellant’s denial that no certificate was sent to  the appellant on April 10, 1965. As  to  the second contention raised by  the  appellant,  it appears  from  the standing order (i) in Section  G  that  a workman  who does not report for duty within eight  days  of the  expiry of his leave loses his lien on the  appointment. There is dispute between the parties as to what these  words in  the  standing order; which evidences the  conditions  of service,  mean.  So far as Hanuman is concerned he  admitted in  his  statement  in  cross-examination  that  under   the standing  order of a workman remained absent from  duty  for more  than  eight days his service stood  terminated.   This shows  what  the workman understood the  standing  order  in question  to  mean.  The standing  order  is  inartistically worded,  but  it seems to us clear that  when  the  standing order  provides  that a workman will lose his  lien  on  his appointment in case he does not join his duty within 8  days of  the  expiry of his leave, it obviously  means  that  his services  are automatically terminated on the  happening  of the contingency.  We do not understand how a workman who has lost  his  lien on his appointment can continue  in  service thereafter.  Where therefore a standing order provides  that a workman would lose his lien on his appointment, if he does not  join  his  duty within certain  time  after  his  leave expires,   it  can  only  mean  that  his   service   stands automatically terminated when the contingency happens. 58 Reliance in this connection was placed on certain cases and we  shall refer to them now.  In Chandrabai Uma v. The  Ele- phant  Oil Mills Ltd.(1) the standing order provided that  a workman would lose his appointment unless he returned within 8  days of the expiry of the leave and, gave explanation  to the  satisfaction  of the authority granting  leave  of  his inability to return before the expiry of leave.  The  Labour Appellate  Tribunal held in that case that where a  standing order  provided for automatic termination of service, s.  23 of  the Industrial Disputes (Appellate Tribunal)  Act,  1950 would  not apply.  That decision in our view lays  down  the correct law.  Section 33 of the Act corresponds to s. 23  of the Industrial Disputes (Appellate Tribunal) Act, 1950.  The position therefore would be the same under S. 33 of the Act. Where therefore a workman’s service terminates automatically under  the standing order, s. 33 would not apply and  so  an application  under  s. 33-A would not  be  maintainable,  as there is no question in such a case of the contravention  of s.  33 of the Act.  But the words in the standing  order  in that  case  were slightly different, for  they  specifically provided that the workman would lose his appointment, and it is  argued on behalf of the respondent that that case  would

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not in the circumstances apply.  But as we have already held there  is no difference between saying that  "the  workman’s lien would stand terminated" as in the present case and that "the workman would lose his appointment" as in that case. The  next case to which reference may be made  is  Raghunath Enamel.v  Ltd. v. Sri Surendra Singh (2).  In that case  the Labour Appellate Tribunal distinguished its earlier decision in  Chandrabai Uma’s case(1) because the words in that  case were that if a workman remained absent for a certain  period he  would  lose  his lien and not that  he  would  lose  his appointment.   The Labour Appellate Tribunal seems  to  have held that losing lien is different from losing  appointment. With  respect it seems difficult for us to  appreciate  what difference  there  is, for, we think, that  once  a  workman loses his lien on his appointment he loses his  appointment. We cannot therefore accept the distinction which was made by the Labour Appellate Tribunal in that case. In  Sahajan v. A. Firpo Company Limited(3) the words of  the standing order provided that "if the workman remains  absent beyond   the   period  of  leave   originally   granted   or subsequently   extended   he  shall  lose   lien   on   this appointment...." In that case the Labour Appellate  Tribunal followed  the case of Chanda bai Uma(1) and not the case  of Raghunath Enainels Ltd.,(1) though one of the members of the Tribunal was common to both.  This (1) [1991] I I.L.J. 370. (2) [1953] I L.L.J. 261. (3) [1953] II L. L. J. 686. 59 case  is on all fours with the present case and was  in  our opinion rightly decided. The  next  case to which reference may be made  is  Yeshwant Sitaram  Bane  v. Goodlass Wall Limited(1).  That  case  was decided on its peculiar facts which have no parallel in  the present case.  There the employee had applied for such leave which  was due to him.  But the employer did not  grant  the leave   due  and  treated  the  service   as   automatically terminated  as  the employee had not joined within  15  days from  the  expiry of the original leave.  It  was  on  these facts  that the Labour Appellate Tribunal interfered.   That case therefore stands on its own facts. The  next case to which reference may be made  is  Kanaksing Ramsing  v. Narmada Valley Chemical  Industries  Limited.(1) There  also the words of the standing order  were  different and  it  provided  for placing the workman on  the  list  of Badlis  if he appeared within 15 days of the expiry  of  his leave.  That case therefore has no application to the  facts of the present case. The last case to which reference may. be made is  Buckingham and  Carnatic Company Limited v. Venkatayya and  another(1). That case arose under the Employees’ State Insurance Act (34 of  1948).   The  words of the  standing  order  there  were specific  and  laid  down that  "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." In  the face of those words, s. 73 of the Employees’ State Insurance Act  was held inapplicable.  Though the case is not  on  all fours  with  the  present  case  because  it  deals  with  a provision  of another law, the reasoning in that case  would apply in the present case.  We are therefore of opinion that Hanuman respondent’s service stood automatically  terminated for he did not appear for eight days after the expiry of his leave  on April 9, 1965.  In this view of the matter  s.  33 cannot be said to have been contravened and s. 33-A will not

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apply. It  is  however urged that some difference is  made  by  the existence  of another provision in the Standing Orders.   In Appendix  ’D’  of  the  Standing Orders  one  of  the  Major Misdemeanours  is "absence without permission exceeding  ten consecutive  days."  That in our opinion is  an  alternative provision and the appellant in this case was free to  resort to any one of the provisions, unless it is shown that resort to one particular provision was due to mala. fide.  This  is not  the case of the respondent here.  In the  circumstances the earlier standing order in Section G must be held to (1) [1954] I L.L.J. 505. (2) [1956] I L. L. J. 377. (3) [1963] I  L.L.J. 638=[1964] 4 S.C.R. 265. 60 have full force and effect and Hanuman respondent’s  service stood automatically terminated when he did not appear within 8  days  of the expiry of his leave which was  on  April  9, 1965. We therefore allow the appeal and set aside the order of the labour court reinstating Hanuman.  The automatic termination of his service under the relevant standing order would  thus stand.   In view of the order of this Court dated March  20, 1967  made at the time of granting special leave,  we  order the  appellant to pay the costs of the respondent.   Further this  Court had ordered then that stay would be  granted  on condition  that  the appellant would pay full wages  to  the respondents  pending disposal of the appeal.   We  therefore order  that whatever wages have been paid to the  respondent upto now shall not be recovered by the appellant. G.C.                                                  Appeal allowed. 61