REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    7312        OF 2008 [Arising out of SLP (Civil) No. 13894 of 2006]

M.P. State Electricity Board & Anr. …Appellants

Versus

S.K. Yadav …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Whether respondent should have been granted back wages in the facts

and circumstances of this case is the question involved in this appeal which

arises out  of a judgment and order dated 22.06.2005 passed by the High

Court of Madhya Pradesh at Jabalpur in Writ Petition No. 975 of 2001.

3. The basic fact of the matter is not in dispute.   

Respondent herein is a Homeopathic Doctor.  He was appointed as a

Homeopathic Assistant  in the Homeopathic Dispensary which used to be

run by the appellant.  However, the Dispensary was closed.  He was asked

to  join  the  Head  office  as  Office  Assistant  Grade  –  II.   He  protested

thereagainst.  He went of leave with effect from 10.09.1991.  It is alleged

that  he  remained  unauthorisedly  absent  on  and  from  10.09.1991  upto

1.12.1993.  In the meanwhile, he filed several representations as regards the

decision of the management to transfer him in the post of Office Assistant

Grade – II in the Head Office upon closure of the Homeopathic Dispensary.

4. A chargesheet was issued to him on or about 12.07.1994 in respect of

the following charges:

“Charge  No.  1  –  Officiating  on  the  abovesaid responsible  post,  Sri  S.K.  Yadav,  exercising irresponsible  behaviour,  remained  absent  w.e.f. 11.9.91  from his  duty without  permission  of  his Senior Officer and without giving written or oral information in unauthorized manner.  Even charge of all the homeopathic medicines and commodities of  Dispensary  which  was  under  you,  without

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handing over the charge to anybody else, kept the keys with you in unauthorized manner.  Dr. Yadav was informed to be present on his duty vide Letter No. 01-04/CMO/224, Dated 20.0.91 (sic) of Chief Medical  Officer,  M.P.E.B.,  but  neither  he presented himself on duty nor thought it necessary to reply the letter of Chief Medical Officer.

Thus,  Sri  S.K.  Yadav  under  provisions  of M.P. Civil Service Rules and under para no. 24(2) of provisions of M.P. Civil Services Leave Rules (Classification and Appeal) Rules, 1966 which has been admitted by the Board vide its  Notification No. 01-01 Five /1620/81/98/68 dated 21.4.82, has made  himself  eligible,  violating  the  above provisions for serious disciplinary action.

 Charge  No.  2  –  That  Sri  Yadav had been directed  to  give  his  clarification  for  remaining absent  continuously  from  duty  vide  this  Office Letter No. 02-07/one/Estd. 1782 dated 16.11.1993. Sri  S.K.  Yadav  on  01.12.93  in  the  afternoon submitted information of his being present in the office of undersigned, but he did not produce any clarification  for  his  undisciplined  action. Thereafter, Sri S.K. Yadav was found absent from his  duty  from  7.12.93  without  any  prior information and permission.

Thus,  act  of  Sri  Yadav,  i.e.,  remaining absent  continuously  from his  duty  without  prior information or permission in unauthorized manner, is grave misconduct contrary to Rule 3 and ….of Madhya Pradesh Civil  Services (Conduct) Rules, 1965, which has been enforced by the Board vide its Notification No. S/111/G-213, dated 28.2.68 on its employees and under  part  12/1/P of Standard Standing Order.

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Charge No. 3 – On 1.12.93 in spite of being present on duty, Sri Yadav remained disinterested towards the works of Electricity Board.  Sri Yadav was  informed  vide  this  office  letter  No.  02- 07/one/Estd./53 Dated 11.1.94 that you will work under the guidance of Section Officer, but it was found  that  you were  not  found  on  your  allotted work in the office and it was also found that you remained  absent  from  office,  putting  your signature on Attendance Register from 10.30 a.m. to  5.30  p.m.  on  regular  basis,  violating  all  the Office Directions.”

5. A  disciplinary  proceeding  was  initiated  in  respect  of  the

aforementioned charges.  Respondent was, however, exonerated of Charge

No. 3.  Charges No. 1 and 2 having been proved, a penalty of reduction of

pay to its minimum and stoppage of increments for a period of five years

was passed against him.   

Respondent  filed  an  application  under  Section  31(3)  read  with

Section 61 of the Madhya Pradesh Industrial Relations Act, 1960 (for short

“the Act”) before the Labour Court.  The said application was allowed in

terms of an award dated 29.05.1999, whereby the Presiding Officer, Labour

Court passed the following award:

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“Hence,  allowing  the  applicant’s  application, disputed order dated 21.9.96 passed by the office of  Opposite  Parties,  on  account  of  being  illegal and  unjust,  I  do  reject  the  same  and  Opposite Parties are being directed that disputed order dated 21.9.96 on account of being rejected, applicant is being  declared  entitled  for  receiving  all  his interests  and  profits  of  his  earlier  post  before 21.9.96 from the Opposite Parties.”

6. In the said award, the learned Labour Court discussed in details about

the correctness or otherwise of the allegations made against the respondent

by the department as also the report of the Inquiry Officer.   

An  appeal  preferred  thereagainst  was  dismissed  by  the  Industrial

Tribunal by an order dated 3.08.2000.   

A  writ  petition  was  preferred  thereagainst.   By  reason  of  the

impugned judgment, the said writ petition has been dismissed.   

Appellants are, thus, before us.

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7. Mr. Aditya Kumar Dubey, learned counsel appearing on behalf of the

appellants,  would contend that in the peculiar  facts  and circumstances of

this case, the respondent was not entitled to any back wages.   

8. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of the

respondent, on the other hand, contended that keeping in view the fact that

the wages upto February, 1992 had been paid, it is not a case where the back

wages should be denied to him.

9. The terms and conditions of the service are governed under the M.P.

Electricity  Board  (General  Service)  Regulations,  1952  framed  under  the

Electricity (Supply) Act, 1948.  It is also not in dispute that the Standing

Order framed in terms of the provisions of the Madhya Pradesh Industrial

Employment (Standing Orders) Act, 1961 is applicable.   

Respondent filed an application before the Labour Court in terms of

Sub-section (3) of Section 31 of the Act, which reads as under:

“31. Notice of change – (1) *** *** (2) *** ***

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(3) A  representative  of  employees  or  an employee  desiring  a  change  in  respect  of  an industrial  matter  specified  in  Schedule  II  or  any other matter arising out of such change may make an application to Labour Court in such manner as may be prescribed.”

10. The Labour Court while adjudicating on such a complaint is entitled

to determine the question relevant to the dispute in terms of Section 61(1)

(A)(a) and 61(2) of the Act, which reads as under:

“61. Powers of Labour Court – (1) In  addition to powers conferred under other provisions of this Act, a Labour Court shall have power to –  (A) decide -  (a) dispute  regarding  which  application  has been made to it  under sub-section (3) of Section 31 of the Act; *** *** *** (2) For the purposes of deciding a dispute under paragraphs (A) and (B) of sub-section (1) it shall be  lawful  for  the  Labour  Court  to  determine questions of fact relevant to the dispute.”

11. It  is  in  exercise  of  that  power,  the  learned  Labour  Court  invoked

clause (b) of paragraph 8 of the Standing Order, which reads as under:

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“(b) An employee who desires to obtain leave of absence shall apply to the Manager or the Officer authorized by him.  It shall be 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.”

We may also  notice  clause  (e)  of  the  said  paragraph,  which  is  as

under:

“(e) An employee remaining absent beyond the period of leave originally granted or subsequently extended  shall  be  liable  to  loose his  lien  on  his post and shall be deemed to have left the services from the date of his unauthorized 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 authorized by him, his inability to resume immediately on the expiry of his leave.  An employee who so looses 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.”

Inter alia on the aforementioned premise as also on the ground that

ordinarily only a fine can be imposed for being unauthorisedly absent,  it

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was held that the charges against the respondent cannot be said to have been

proved.

12. It is not in dispute that the respondent joined his post on 24.07.1989.

It was furthermore not  in dispute that till  February, 1992,  his wages had

been paid.  The learned Labour Court as also the Industrial Court inter alia

proceeded on the premise that the respondent had been filing applications

for grant of leave although an order thereupon was required to be passed by

the  appropriate  authority  in  terms  of  the  statutory  order,  i.e.,  twice  in  a

week, and the same having not been done, leave must be deemed to have

been granted and in that view of the matter, the respondent cannot be said to

have remained unauthorisedly absent.   

13. The Standing Order framed in terms of Madhya Pradesh Industrial

Employment  (Standing  Orders)  Act,  1961  has  the  force  of  a  statute.

Paragraph 12 of the Standing Order provides for disciplinary action on the

ground of commission of misconduct on the part of an employee.  Clause

(4) of Paragraph 12 thereof provides that no punishment shall be imposed

on an employee unless proved guilty of misconduct in an enquiry conducted

in the manner specified therein.  Punishments which can be imposed upon a

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delinquent employee have been provided in Clause (3) of Paragraph 12 of

the Standing Order.  The Labour Court opined that the punishment imposed

upon the respondent had not been prescribed in the Standing Order.

14. The  Labour  Court  in  terms of  the  provisions  of  the  Act  exercises

jurisdiction as is specified therein.  It was entitled to enter into the question

of fact as also the legality or otherwise of the disciplinary proceedings and

the quantum of punishment imposed.

15. We, therefore, do not intend to interfere with the order of the Labour

Court setting aside the penalty imposed upon the respondent.

16. The  question,  however,  which  arises  for  consideration  is  as  to

whether in the peculiar facts and circumstances of the case the back wages

should have been directed to be paid.   

Unauthorised  absence  for  a long  time is  a  serious  misconduct.   If

respondent  was  aggrieved  by  and  dissatisfied  with  the  decision  of  the

management in regard to closing down of the ‘Dispensary’, he should have

taken recourse to such remedies which were available  to him.  He could

have gone on leave provided the same was due to him in law.  It is not in

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dispute that in terms of Clause (b) of Paragraph 8 of the Standing Order the

applications filed by the workman were required to be considered and an

order thereon should have been passed within the period specified therein.   

Mr. P.S. Patwalia, however, when questioned, could not point out any

consequences emanating therefrom.  It is, therefore, directory in nature.

17. It is now a well-settled principle of law that where a public authority

is required to pass an order in terms of the statute within a period stipulated

therefore,  non-compliance  whereof  would  not  vitiate  the  ultimate  order,

must be held to be directory in nature and not imperative.   

18. The Labour Court, therefore, in our opinion, proceeded on a wrong

premise that by not refusing to grant leave, the same would be deemed to

have  been  granted.   The  Standing  Order  does  not  contemplate  such  a

situation.  The question as to whether leave has been granted or not will

again depend upon the facts and circumstances of each case and no legal

inference can be drawn therefrom.

19. We, therefore, are of the opinion that in a case of this nature, interest

of justice would be subserved, and in particular, having regard to the nature

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of penalty imposed upon the respondent, if the period from 11.09.1991 to

30.11.1993 during which the respondent did not perform any duty, should

be directed to be treated as period on leave.

20. We  may  only  notice  that  even,  according  to  the  department,  the

period of leave should be treated in the following terms:

“Type of leave Duration Total days Extraordinary  Leave (without Pay)

19.9.91 to 14.3.92 178  days  on  13.11.90 converted into half  pay holiday)

15.3.92 to 3.4.92 4.4.92 to 23.4.92 24.4.92 to 13.5.92

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20 20 20

(accepted  as  per  page  17  Sub  Rule  24  of  the Holiday Rules Book of the Board)

Unauthorized  leave (without pay)

14.5.92 to 30.11.93 568”

21. We, therefore, allow this appeal in part directing that the period from

11.09.1991 and 30.11.1993 shall be treated to be as if the respondent was on

leave available to him in law.  The salary paid to the respondent for the

months of December, 1991 to February, 1992 shall be adjusted accordingly.

No costs.

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………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 16, 2008

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