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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.