NEW INDIA ASSURANCE CO. LTD. v. VIPIN BEHARI LAL SRIVASTAVA

Citation: [2008] 3 S.C.R. 175

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, S.H. KAPADIA

Case summary

NEW INDIA ASSURANCE CO. LTD. v. VIPIN BEHARI LAL SRIVASTAVA.pdf

Judgment text

[2008)3 S. C. R. 175 y .. NEW INDlA ASSURANCE GO. LTD. v. VIPIN BEHAR! LAL SRIVASTAVA (Civil Appeal No. 5213 of 2006) FEBRUARY 21, 2008 [DR. ARIJIT PASAYAT AND 5. H. KAPADIA, JJ. ) ' -f Industrial Disputes Act, 1947 - Removal from service - Unauthorised absence - Re-instatement with back wages by ·tribunal holding that the workman was ailing and had applied for sick leave - Order upheld by High Court holding that employer had condoned absence without leave - On appeal, held: There was no condonation of absence without leave - Case of unauthorized absence made out and not of abandonment - Thus, order of Departmental Authorities -. y directing removal from service upheld. Respondent-permanent typist was removed from service for unauthorised absent from service.

In the reference, the tribunal held that the respondent was suffering from tuberculosis and had applied for medical leave but the management did not pass any order on the leave app,lications as such the workman was not absent unauthorisedly from duty. It set aside the termination f _,, order and directed reinstatement with back wages. High Court held that though respondent remained absent but the appellant-company condoned his absence without leave by letter dated 03. 08. 1984 by calling him back to work. However, since the- proceedings before the tribunal were stayed for six years respondent was not entitled to back wages for the whole period. The Division Bench of High Court upheld the order. Hence the present appeal. Allowing the appeal, the Court ~ ' HELD: 1. 1 A bare look at the letter dated 03. 08. 1984 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 could not be granted. Therefore, direction was given to join back immediately failing which certain presumptions were to be drawn. The case of the • appellant was really not of abandonment but of an + unauthorized absence. [Paras 7 and 8] [180-A, 8] 1. 2 Sick leave can be granted only on the production of 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. [Para 10] [180-G; 181-A] 1.

3 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 Single Judge dismissing the writ petition, cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained. ~ I- [Para 12] [182-G; 183-A] .. Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. and Ors. 2005 (5) SCC 337 - referred to. CIVILAPPELLATE JURISDICITON: Civil Appeal No. 5213 of 2006 From the final Judgment dated 10/2/2006 and 20/1/2006 of the High Court of Judicature at Allahabad in SA No. 125/ 2006 and CWP No. 17204/1998. ..... Dinesh Mathur, Sunil Murarka, Saurabh Jain and K. Rajeev r "' • for the Appellant. Shrish Kumar Misra and Ajay Kr. Singh for the Respondent. - The Judgment of the Court was delivered by 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 • 1'. 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 f - - 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 iof 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. " 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 A 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. · B - 13. The Appeal is allowed without any order as to costs. _, N. J. Appeal allowed. 1